In Maxwell v. County of San Diego, the 9th Circuit said there was no reason why tribal immunity should extend to individual tribal employees for "allegedly grossly negligent acts committed outside tribal land pursuant to an agreement with a non-tribal entity."

The family of a woman shot to death by her sheriff deputy husband brought suit against San Diego County, the Viejas Band of Kumeyaay Indians, and others, claiming that the woman died from a non-life threatening gunshot wound due to unnecessary delays from first responders. Among the first responders was an ambulance sent by the Viejas Band. More information and a link to the opinion is available here.

Bloomberg BusinessWeek magazine is featuring Tribes in the Puget Sound area that have successfully captured export markets in China and elsewhere with a unique product: the massive Geoduck clam. This unusual natural resource has become highly profitable due to growing consumer demand in Asia, and effective management and marketing by coastal Tribes has created a flourishing multi-million dollar industry.

Foster Pepper Native American Group attorneys Greg Guedel and Ron Whitener are quoted in the article, which discusses the treaties and court decisions that affirmed Tribes' rights to Geoducks and other marine resources in their traditional lands. After solidifying their legal rights, Tribes that harvest Geoducks implemented strong monitoring and environmental protection for key marine areas, helping ensure the vitality and sustainability of this industry. With Geoduck habitat confined to the Northwest coast and a small area in California, Puget Sound Tribes are shaping the growth of this beneficial industry from a dominant market position.

The National Indian Health Board and a consortium of Tribes and Tribal agencies have filed an amicus brief in the “Obamacare” lawsuit, where a federal judge in Florida ruled the federal government’s landmark healthcare reform unconstitutional. The lawsuit was filed after President Obama signed into law the Patient Protection and Affordable Care Act, which is designed to provide health care coverage to all Americans.

The primary issue in the lawsuit, which is now on appeal, is whether the Constitution allows the federal government to require individual Americans to purchase health care insurance. Over two dozen states joined together to oppose the reform legislation, arguing that the federal government does not have the power to compel individuals to purchase health care insurance. The lawsuit was filed in federal court in Florida, and the trial judge ruled the legislation unconstitutional. The matter is now being reviewed by the 11th Circuit Court of Appeals.

Within the federal health care reform legislation, there are sections that provide significant benefits for Native American health care programs. The legislation permanently re-authorized the Indian Health Care Improvement Act, which provides funding and administrative support for health care in Native communities throughout the country. In their amicus brief, Tribes have asserted that the portions of the health care legislation that impact Native Americans are constitutional and should be “severed” from any portions of the legislation that are ultimately determined to be unconstitutional. That would allow for funding and other improvements to Tribal health care to continue even if other portions of the new law are overturned.

Interestingly, the portions of the law applicable to Native American health care actually provide and exemption for Native Americans from the individual insurance purchase requirement – which is consistent with the goals of the states seeking to have the new laws overturned. This provides a potential opportunity for agreement between the states and Tribes, where all sides could concur on the validity of the sections that improve health care for Native communities.

Chickaloon Native Village, a federally-recognized Athabascan Indian Tribal government in Alaska, filed a communication to the United Nations Independent Expert on the human right to water and sanitation, seeking help in stopping a new open-pit coal mine in the Village’s traditional territory.

Chickaloon Village’s submission asserts that the new mine proposed by the Usibelli Corporation would contaminate local drinking water sources as well as rivers, streams and groundwater that support salmon, moose and other animals and plants vital for subsistence, religious and cultural practices. The US Federal Government and the State of Alaska have, to date, not responded to Chickaloon’s firmly-stated opposition to the mine.

The visit to the US by the Independent Expert, Mrs. Catarina de Albuquerque, a Portuguese human rights expert appointed by the UN Human Rights Council, includes stops in Washington DC, Boston Massachusetts and Northern California, where she will meet with the Winnemem Wintu and other Indigenous representatives. Her US visit will end on March 2, 2011.

Mrs. De Albuquerque will meet with the US State Department and relevant Federal agencies as well organizations, communities and experts to receive information regarding the human right to water and sanitation and the federal and state policies and practices that affect this right. She is expected to make recommendations to the US government at the conclusion of her visit.

Explaining the reasons behind Chickaloon’s filing, Traditional Chief Gary Harrison stated: "International standards like the UN Declaration on the Rights of Indigenous Peoples recognize our inherent sacred right to protect our water and keep it clean for the animals, fish and future generations of our Nation. Our right to water is the same as our right to life. We can’t sit back and allow our human right to water to be violated again".

The U.S. Department of Health and Human Services requests proposals for Environmental Regulatory Enhancement. This RFP will the support the development, enforcement, and monitoring of tribal environmental quality and regulatory programs. $750K expected to be available, up to 5 awards anticipated. Responses due 4/1/11. For more info, contact Mark Allender at mark.allender@acf.hhs.gov or go to: http://www.acf.hhs.gov/grants/open/foa/view/HHS-2011-ACF-ANA-NR-0142. Refer to Sol# HHS-2011-ACF-ANA-NR-0142.

Safe Tribal Waters

The U.S. Environmental Protection Agency requests proposals for Support to the National Tribal Water Council. Through this RFP, EPA seeks projects to conduct, coordinate, and promote the acceleration of research, studies, training, and demonstration projects that will support the participation of the National Tribal Water Council and tribes to prevent, reduce, and eliminate pollution to waters, and protect drinking water in Indian Country. $880K expected to be available, up to 1 award anticipated. Responses due 4/11/11. For more info, contact Felicia Wright at wright.felicia@epa.gov or go to: http://water.epa.gov/grants_funding/tribal/. Refer to Sol# EPA-OW-IO-11-01.

Robert Anderson, associate professor of law at the University of Washington and Director of the University’s Native American Law Center, will be the Oneida Nation Visiting Professor of Law at Harvard Law School for the next five years.

“I am delighted that Bob has accepted our invitation,” said Dean Martha Minow. “He will bring so much to HLS: his strong knowledge of the law, his extensive and significant practice experience both in government and in the private sector, and his ability to create and run the Native American Law Center at the UW, which includes a leading clinical component.”

Nationally renowned for his expertise in Native American legal issues and for his excellence in teaching, Anderson has taught federal Indian law, advanced courses and seminars in Indian law, public land law, property law, and water law at the University of Washington since 2001. He will retain his position at the University of Washington while teaching at Harvard.

“It’s a tremendous honor for me to join the Harvard law faculty as a visiting professor,” said Anderson. “I am most pleased that Harvard Law School recognizes the importance of the study of federal Indian law and I look forward to being part of this great university.”

Anderson is a co-author and a member of the Executive Editorial Board of Cohen’s Handbook of Federal Indian Law, as well as a new casebook in the field, American Indian Law: Cases and Commentary. He has published a number of law review articles in the field, including most recently, a forthcoming article on water rights in the California Law Review; “Alaska Native Rights, Statehood and Unfinished Business,” 43 Tulsa Law Review 17 (2007); “Indian Water Rights and the Federal Trust Responsibility,” 46 Natural Resources Law Journal 399 (2006); and “Indian Water Rights: Litigation and Settlements,” 42 Tulsa Law Review 23 (2006).

An enrolled member of the Bois Forte Band of the Minnesota Chippewa Tribe, Anderson serves as Chief Justice of the Court of Appeals of the Pokagon Band of Potawatomi Indians and as an appellate judge in the Northwest Intertribal Court of Appeals. He holds a B.A. from Bemidji State University and a J.D. from the University of Minnesota Law School.

With President Obama’s recent signing of the Cobell lawsuit settlement approval legislation, the 15+ year legal effort to secure financial compensation for Native Americans in the courts finally reached conclusion. That landmark event is, however, more of a “beginning” than the end of the work to deliver long-overdue compensation to hundreds of thousands of Native Americans throughout the country.

The Cobell settlement law will ultimately provide $3.4 Billion in cash payments to Native Americans who have ownership rights in one or both of two categories:

Payments for Individual Money Accounts: Congress has allocated $1.4 Billion to compensate Native Americans who hold government issued Individual Money Accounts, which were supposed to receive deposits from the federal government from sources such as lease revenues from oil drilling on Tribal land. People who hold Individual Money Accounts will receive varying sums of money from the settlement, depending on the determination of how much money the government should have allocated to a person’s account over the years.

Payments for Land Shares: Congress has allocated $2 Billion to buy back the “fractionated” land shares held by many Native Americans, which have often resulted in dozens of people being owners of a small percentage of a piece of land that previously belonged to their Tribe. People who hold these ownership shares in land will have the option to sell them back to the government, which will then turn the land back over to the Tribe to be placed in trust. The amount of money the government will pay for a given share of land ownership has not yet been determined.

For Native Americans who will be eligible to receive compensation under one or both of these ownership rights, it is important to think ahead about personal financial planning. It is a tragic historical fact that generations of Native Americans were denied the information and services they deserved to help take care of their families’ finances. Today, few people realize that estate planning for Native Americans is subject to a special federal law known as the American Indian Probate Reform Act, or “AIPRA”. This law sets out specific requirements and procedures that only apply to Native Americans, and which must be followed in order to ensure that assets held by Native Americans can pass to the next generation the way a person intends.

Without an AIPRA-compliant estate plan, your money or trust lands may not pass to your descendants in the manner and proportions you desire, or may not pass to your descendents at all. The only way to be sure that your interests in trust lands end up being inherited by the people you want, particularly if you have small or fractionated interests in land or other assets, is to have a will that meets the requirements of AIPRA.

Creating an estate plan that complies with AIPRA will help you:

• Ensure your intended heirs are eligible to receive your interests in trust lands;
• Prepare a will that conveys your interests the way YOU want them to pass;
• Avoid the default provisions of AIPRA, such as transfers to single heirs and/or forced sales.

The first step for all Native Americans who seek to receive a payment under the Cobell settlement is to collect all of the information and documentation possible regarding your family’s ownership in Tribal lands and Individual Money Accounts. This information will be crucial in proving eligibility for payments. Even before the payments are issued, it makes sense to begin the financial planning that will ensure the money received is properly held for the family’s benefit. To discuss financial and estate planning and how to ensure your family’s plan will be compliant with AIPRA, you can contact Foster Pepper’s Native American Legal Services attorneys Duncan Connelly or Greg Guedel, via email through the links on their names or by phone at 206.447.4400.

“And as you know, in April we announced that we were reviewing our position on the U.N. Declaration on the Rights of Indigenous Peoples. And today I can announce that the United States is lending its support to this Declaration.”

The President’s remarks came during the close of the second Tribal Nations Conference held by the White House. His full statement on the Declaration and other Tribal issues can be viewed HERE.

While the statement declares a change in US policy, there will be much practical work required to implement the provisions of the Declaration and assess its impact on relations between the federal government and Tribal communities.

The International Code Council is mounting an effort to create an amendment to Section 408(d) of the Tribal Self Government Act of 2010, HR4347, that has passed the House and is currently pending in the Senate Indian Affairs Committee. The purpose is to help preserve the sovereign right of Tribes to establish building codes that best serve their infrastructure development needs, rather than having these codes dictated by the Bureau of Indian Affairs.

Currently, HR 4347 Section 408(d)(1) provides:

"d) Codes and Standards- In carrying out a construction project under this title, an Indian tribe shall--
(1) adhere to applicable Federal, State, local, and tribal building codes, architectural and engineering standards, and applicable Federal guidelines regarding design, space, and operational standards, appropriate for the particular project…"

This language assumes that the codes and standards adopted by the Bureau of Indian Affairs (BIA) are the same as, or consistent with, the codes and standards adopted by the Tribes, or by the jurisdictions in which Tribal construction projects are taking place. This is not always the case, as the BIA has adopted a building code (NFPA 5000) that is not currently in use by Tribes. If the BIA requires compliance with this code, which is inconsistent in certain areas with the International Building Code used by many Tribes, it could cause significant delays and increase the Tribe’s design and engineering costs.

The language the ICC is recommending to amend H.R. 4347 is as follows, to be added at the end of the first sentence of Sec 408 (d)(1):

"Where the applicable Federal guidelines or building code conflict with the building code adopted by the Tribe, the Tribal code shall be adhered to."

The adoption of by Tribes of civil codes for building projects and other activities is an important measure for the preservation of sovereignty. Federal agencies will more readily seek to impose their authority on Tribal activities if a Tribe does not have its own regulations in place to govern that activity. More information on this legislative effort regarding Tribal building codes is available from the ICC’s website.

Today I have signed into law H.R. 4783, the "Claims Resolution Act of 2010." This Act, among other things, provides funding and statutory authorities for the settlement agreements reached in the Cobell lawsuit, brought by Native Americans; the Pigford II lawsuit, brought by African American farmers; and four separate water rights suits, brought by Native American tribes. While I am pleased that this Act reflects important progress, much work remains to be done to address other claims of past discrimination made by women and Hispanic farmers against the Department of Agriculture as well as to address needs of tribal communities.

I am also pleased that the Act includes authorities proposed by my Administration concerning Unemployment Compensation program integrity, to expand the ability of the Federal Government to recover from individual income tax overpayments certain Unemployment Compensation debts that are due to an individual's failure to report earnings. My Administration has been working to protect taxpayer funds through improved recovery of improper Federal payments, and the additional authorities in this Act will assist in that effort. In order to ensure that the intent and effect of these program integrity provisions are realized, my Administration is working with the Congress to correct an inadvertent technical drafting error in section 801(a)(3)(C), so that the provision can be implemented as intended.

Eric Eberhard, Distinguished Indian Law Practitioner in Residence at the Seattle University Center for Indian Law and Policy, has published an 862-page treatise on the principles and issues involved in Tribal trust lands. The treatise was produced in conjunction with the University’s law conference entitled “Perspectives on Tribal Land Acquisitions in 2010: A Call to Action”, and provides in-depth discussions of the legal background and current developments of Tribes’ quest to preserve and protect their traditional lands.

The U.S. Department of Agriculture (USDA) has announced an historic agreement to settle a decade-long class action lawsuit known as Keepseagle v. Vilsack, wherein Native American farmers and ranchers alleged discrimination in the USDA's farm loan program dating back to 1981.

Under the agreement, the USDA will pay $680 million in damages to thousands of Native American farmers and ranchers and forgive up to $80 million worth of outstanding farm loan debt. The settlement also initiates new programs to improve USDA's farm loan services for Native Americans. Those initiatives include the creation of a Native American Farmer and Rancher Council, where top USDA officials and Native American advocates will collaborate to make USDA's programs more accessible for Native Americans farmers and ranchers, as well as enhanced delivery of technical assistance to Native American borrowers, the creation of sub-offices on tribal lands, a systematic review of the farm loan program rules to improve accessibility to Native Americans and other measures designed to improve the provision of farm loan services to Native Americans.

The Keepseagle lawsuit alleged that Native American farmers and ranchers were denied the same opportunities as white farmers to obtain low-interest rate loans from USDA. Congress has charged the USDA with serving as the "lender of last resort" for family farmers who can't obtain credit from commercial banks. According to an expert report prepared by a former USDA economist, Native Americans suffered actual economic losses amounting to $776 million between 1981 and 2007 as a result of receiving less than their fair share of credit opportunities from the USDA.

Lead plaintiffs Marilyn and George Keepseagle, ranchers in Fort Yates, N.D.,said "We have been waiting nearly three decades for this day to come. This settlement will help thousands of Native Americans who are still farming and ranching. But more important, through this settlement we will leave to our children and grandchildren a farm loan system far more responsive to our community than the system we inherited from our parents."

The settlement has three major components:
1) Payment of $680 million in damages to class members for the economic losses they suffered due to the denial of loans or loan servicing by the USDA.

2) The USDA will forgive up to $80 million in debt currently held by class members who succeed in obtaining damages. Once the Court gives preliminary approval to the agreement, the USDA will establish a moratorium on foreclosures, debt accelerations and debt offsets not already referred to the Treasury Department. The moratorium will last until the debt relief process has concluded and class members' debt has been forgiven. After the debt relief is provided, USDA will engage in a round of loan servicing for all class members who are delinquent on any outstanding USDA farm loan debt.

3) Changes to USDA's farm loan program to improve the delivery and responsiveness to Native American farmers and ranchers, including through the creation of the Native American Farmer and Rancher Council, a new federal advisory committee. The new Council will have 15 members, 11 of whom will be Native Americans or represent Native American interests and four of whom will be top USDA officials. Members will meet at least twice a year for the next five years to discuss how to make USDA's programs more accessible for Native Americans farmers and ranchers, including changes to Farm Service Administration (FSA) regulations and internal guidance. The Council will report its recommendations directly to senior USDA officials.

In addition to the Council, the USDA will: 1) create 10 to 15 USDA regional sub-offices that will provide education and technical assistance to Native American farmers and ranchers and their advocates; 2) undertake a systematic review of its farm loan policies to determine how its regulations and policies can be reformed to better assist Native American farmers and ranchers; 3) create a customer guide on applying for credit from the USDA; 4) create the Office of the Ombudsperson to address concerns of all socially disadvantaged farmers and ranchers; and, 5) regularly collect and report data on how well Native Americans fare under USDA's farm loan programs.

The legal battle over whether fake snow can be sprayed by a ski resort in Arizona’s 12,000-foot-high San Francisco Peaks has a new venue: the Flagstaff City Council. Tribal elders, U.S. senators, federal judges and senior Obama Administration officials all have weighed in on the controversy of artificially applying frozen water to land where the Hopi, Navajo and 11 other tribes trace their origins. Many Native Americans believe it is sacrilege for skiers and snowboarders to use the area for recreation, and more so for the ski resort owners to tamper with the natural surroundings. The Arizona Snowbowl resort says it's just trying to run a business.

The Snowbowl ski area is located on 777 acres in the Coconino National Forest. Tribes have been battling the resort since the 1970s. For the second time in 20 years, the U.S. Supreme Court last year refused to hear their case, and now the matter will be reviewed by the Flagstaff City Council. Local officials are to vote on whether to pump potable recycled water to the resort to make snow. It's unclear whether this will be acceptable to the Tribes, who were infuriated by a previous plan to use treated sewer water.

"This mountain is where life began; it created us," says Rex Tilousi, a leader of the Havasupai tribe. Native Americans journey to the peaks to collect herbs for traditional healing and worship deities they believe dwell there. Dumping artificial snow there, says Mr. Tilousi, is "like bombing a church."

For the operators of Snowbowl, artificial snow is necessary to ensre a steady ski season, which is the basis for hundreds of local jobs. "If you don't have snowmaking, the question is not if you will go out of business; it's when you will go out of business," says Eric Borowsky, the resort's owner. "We only occupy 1% of the peaks. Can't we share this?"

After years of environmental review detailed in a 600-page report, the U.S. Department of Agriculture's Forest Service, which oversees the federal land that the resort sits on, approved the artificial snow plan in 2005. If the new plan to use potable water goes through, the federal government may contribute funds to off set the cost increase compared to the use of treated sewage. Arizona Senators John McCain and Jon Kyl sent a letter in March condemning "the use of taxpayer dollars to subsidize snowmaking at Arizona Snowbowl." At the same time, they called on the government to grant Snowbowl permission to start its expansion "immediately."

The new National Child Welfare Resource Center for Tribes has joined the federal Children's Bureau Training and Technical Assistance (T/TA) Network to assure that Tribal child welfare systems have access to the free assistance provided by the T/TA Network. The NRC4Tribes invites your input in a national Tribal Child Welfare TA Needs Assessment survey, which will help improve the quality and accessibility of child welfare services for Native communities.

You can complete this needs assessment survey online HERE, or through the NRC4Tribes website: www.NRC4Tribes.org. Please note that the deadline to complete the NRC4Tribes TA Needs Assessment has been extended to September 7th.

We encourage you to submit your comments and forward this survey to anyone in your community who has an interest in child and family services for Native communities, including:

Federal Judge Richard Roberts has dismissed a lawsuit filed by 20 descendants of legendary Apache leader Geronimo to recover partial remains they allege were stolen by the Skull and Bones Society at Yale University. Skull and Bones is famous for well-connected members such as both Presidents Bush, and the society's lore claims that the organization possesses Geronimo's skull.

The lawsuit alleged that Geronimo's remains were stolen in 1918 from his burial plot at Fort Sill, Oklahoma, where he died in 1909. The decision to dismiss was based in part on the Judge's finding that the law under which the plaintiffs sought to recover the remains only applied to Native artifacts that were improperly appropriated after 1990.

The Treasury Department is seeking comments from Tribal Governments and interested individuals regarding the ability of Tribes to issue tax-exempt bonds. This includes Tribal Economic Development Bonds (TEDBs) that were authorized by ARRA. The attached PDF document contains the Treasury Department's notice, and comments are due by September 10, 2010.

Questions posed by the Department include:

Are there any specific additional types of projects or activities beyond those allowed for State and local governments for which Indian tribal governments should be authorized (or not authorized) to use qualified tax-exempt private activity bonds (i.e., in which private business ownership, leasing, or other private business use of the bond-financed projects would be permitted) in light of their special needs or unique circumstances?

Should the limitation on use of Tribal Economic Development Bonds to finance projects that are located outside of Indian reservations be modified to address special needs or unique circumstances of Indian tribal governments?

Should consideration be given to changing the law permanently to authorize Indian tribal governments to use qualified tax-exempt private activity bonds for the same types of projects and activities as are allowed for State and local governments?

Many Tribes and their partners have chafed over the past decade as the IRS introduced, largely on a retroactive basis through its audit program, new requirements that prohibited Tribes from issuing debt on a tax-exempt basis (e.g. there could be no commercial aspects of a bond-financed project and a tribe would need to prove that numerous state and local governments had been financing similar improvements with bonds over long periods of time).

Comments can include real-life examples of projects that Tribes had to forego (or finance on a more expensive taxable basis) because the current tax laws prohibited tax-exempt financing. It may also be helpful to identify frustrations Tribes have encountered trying to use TEDBs, and debunk the myth that tribes are mainly focused on casinos.

For more information regarding how to help influence the Treasury Department to improve its Tribal bond program, contact Foster Pepper’s Jeff Nave.

The long-awaited amendments to the Tribal Law and Order Act of 2009 have been completed and passed by both the House and Senate, and President Obama is expected to sign the bill into law shortly. The new law enacts numerous changes to the rules, process, and funding for the administration of justice in Tribal communities, and it specifically --

Increases the maximum authorized criminal sentence in a Tribal Court to three years, if the defendant has or is provided an attorney and other federal criminal procedure rules are followed.

Replaces the Division of Law Enforcement Services in the Department of the Interior with the Office of Justice Services in the Bureau of Indian Affairs, and sets forth duties including - (1) communicating with tribal leaders, tribal community and victims' advocates, trial justice officials, and residents of Indian land on a regular basis regarding public safety and justice concerns; (2) providing technical assistance and training to tribal law enforcement officials for gaining access to crime information databases; (3) collecting, analyzing, and reporting data on crimes in Indian country on an annual basis; (4) sharing with the Department of Justice crime data received from tribal law enforcement agencies on a tribe-by-tribe basis; and (5) submitting to the House Committee on Natural Resources and the Senate Committee on Indian Affairs a spending report on tribal public safety and justice programs and a report on technical assistance and training provided to tribal law enforcement and corrections agencies.

Directs the Secretary of the Interior to submit to Congress a long-term plan to address incarceration in Indian country.

Authorizes BIA law enforcement officers to make warrantless arrests in Indian country based on probable cause for misdemeanor offenses involving controlled substances, firearms, assaults, or liquor trafficking.

Expands requirements for reporting by federal law enforcement officers, the Federal Bureau of Investigation (FBI), and United States Attorneys to Indian tribes on decisions not to investigate or prosecute alleged violations of federal criminal law in Indian country.

Requires the Attorney General to submit annual reports to Congress on investigations and prosecutions in Indian country that were terminated or declined.

Authorizes the Attorney General to appoint tribal prosecutors and other qualified attorneys to assist in prosecuting federal crimes committed in Indian country. Requires each United States Attorney whose district includes Indian country to appoint at least one assistant United States Attorney to serve as a tribal liaison for specified purposes, including coordinating the prosecution of federal crimes that occur in Indian country, combating child abuse and domestic and sexual violence against Indians, and providing technical assistance and training on evidence gathering techniques.

Establishes in the Executive Office for United States Attorneys the position of Native American Issues Coordinator, to coordinate with United States Attorneys in prosecuting crimes in Indian country.

Directs the Secretary of Health and Human Services to: (1) establish a prescription drug monitoring program at the health care facilities of the Indian Health Service, tribal health care facilities, and urban Indian health care facilities; and (2) report to the House Committee on Natural Resources and the Senate Committee on Indian Affairs on such program.

Directs the Attorney General, in conjunction with the HHS Secretary and the Secretary of the Interior, to: (1) conduct an assessment of the capacity of federal and tribal agencies to carry out data collection and analysis relating to prescription drug abuse in Indian communities; (2) provide training to Indian health care providers and other Indian tribal officials to promote awareness and prevention of such abuse and strategies for improving agency responses to addressing it; and (3) report to the House Committee on Natural Resources and the Senate Committee on Indian Affairs on prescription drug abuse prevention activities.

UPDATE: The State Department has now agreed to allow Iroquois players and team officials to travel under Iroquois Nation passports, which clears the way for the team's participation in the tournament. The team still needs to catch a trans-Atlantic flight on Wednesday July 14th to compete in its first game on the 15th.

A thousand years ago, the Iroquois Nation invented the game of lacrosse. Yet despite having created the game and shared it with the world, the Iroquois may be kept out of this year’s World Championship for their sport due to U.S. visa problems.

Teams from 30 nations are scheduled to participate in the World Lacrosse Championships in England. In a positive example of international recognition of Native sovereignty, the Iroquois participate at every tournament as a sovereign nation. The problem this year is a dispute regarding the players’ passports. The 23 players have passports issued by the Iroquois Confederacy, a group of six Tribal nations stretching from upstate New York into Ontario, Canada. The U.S. government says it will let players back into the country only if they have U.S. passports. The British government, meanwhile, won't give the players entry visas if they cannot guarantee they'll be allowed to go home.

The team has been traveling on Iroquois passports for the past 20 years, and Iroquois passport-holders have been using them to go abroad since 1977, said Denise Waterman, a member of the team's board of directors. Within the last year, colleagues used their Iroquois passports to travel to Japan and Sweden, she said. In the past, U.S. immigration officials accepted the Iroquois passports when they obtained visas — including trips to Britain in 1985 and 1994, and in 2002 to Australia. The 2006 tournament was in Canada, and the team had no cross-border issues.

The new dispute can be traced to the Western Hemisphere Travel Initiative, which went into effect last year. The new rules require that Americans carry passports or new high-tech documents to cross the border. "Since they last traveled on their own passports, the requirements in terms of the kind of documents that are necessary to facilitate travel within and outside the hemisphere have changed," Crowley said. "We are trying to help them get the appropriate travel documents so they can travel to this tournament."

Iroquois team members born within U.S. borders have been offered U.S. passports, but the players refused. They see the documents as an attack on their identity, said Tonya Gonnella Frichner, a member of the Onondaga Nation who works with the team. "It's about sovereignty, citizenship and self-identification," said Frichner, who also is the North American regional representative to the U.N. Permanent Forum on Indigenous Issues.

One Iroquois player, Brett Bucktooth, said he would rather miss the tournament than travel under a U.S. passport: "That's the people we are, and that's our identity."

Today, the Iroquois team is ranked No. 4 by the Federation of International Lacrosse and represents the Haudenosaunee — an Iroquois Confederacy of the Oneida, Seneca, Mohawk, Tuscarora, Cayuga and Onondaga nations.

Native-owned corporations have benefitted greatly from federal preferences in no-bid and other set-aside contracts worth billions of dollars each year. That success has attracted criticism from other business owners, including Hispanics who remain ineligible for no-bid contracts, in addition to politicians and advocacy groups who say no-bid contracts are a bad deal for taxpayers. As a result, changes to the federal contracting program used by many Native firms are being actively considered in Congress, and one significant change has already been approved.

The rules for the contracting program, created to assist minority-owned businesses and run by the U.S. Small Business Administration, are still being rewritten. One of the proposed requirements is for Native-owned companies to report annually on how the federal contracts are benefiting their shareholders.

The change that has already moved forward is an amendment to a Department of Defense spending bill, which will prevent firms from receiving no-bid defense contracts worth more than $20 million unless a federal Contracting Officer provides a written justification that is then approved by the Department. Native-owned firms routinely obtain defense contracts worth hundreds of millions of dollars through the no-bid process, but Native owners were not given a chance to comment on the amendment, which was inserted into the spending bill after the conclusion of public hearings. The Defense Department must create new regulations for the amendment, and the Department has agreed to host Tribal consultations before creating them.

“I am absolutely committed to moving forward with you and forging a new and better future together. It’s a commitment that’s deeper than our unique nation-to-nation relationship. It’s a commitment to getting this relationship right, so that you can be full partners in America’s economy, and so your children and grandchildren can have an equal shot at pursuing the American dream.” -- President Obama

During the White House Tribal Nations Conference in November 2009, President Obama met with leaders invited from all 564 federally recognized Tribes to forge a stronger relationship with Tribal governments. Acknowledging the history of marginalization of Native people, of promises broken and treaties violated, and of failed government solutions, President Obama called for a new and better future in which Tribal nations are full partners.

The President signed a memorandum at the conference directing Federal agencies to submit detailed plans of actions on how they intend to secure regular and meaningful consultation and collaboration with Tribal officials for policy development. Agencies are currently in the process of implementing these plans. In the interim, the White House has released a Progress Report that provides details on the status of federal programs designed to address issues of concern for Tribal communities. The report can be accessed HERE.

The U.S. Court of Appeals for the 10th Circuit has rejected the EPA’s claim that it has primary permitting authority over uranium mining on property near Tribal lands, limiting the federal government’s reach over this controversial mining in major uranium producing states – many of which are also home to Tribal communities.

The Court’s June 16, 2010 ruling in Hydro Resources, Inc. (HRI) v. EPA, et al., sides with industry arguments that the site of a particular uranium mine in New Mexico is not located on Tribal land because it falls outside the Navajo Nation’s boundaries. The EPA had argued for a broader standard which would allow it to regulate uranium mining anywhere that is considered “Indian Country” under federal law, even if the property was outside the defined boundaries of a Reservation. A result of the Court’s decision is that regulation of such mines will be left to state law, which is not consistent from state to state.

In its published opinion, the Court noted: “EPA argued . . . that we should cast our gaze beyond the particular land in question. In the Agency’s view, because some sufficiently significant (though unspecified) percentage of neighboring lands -- what EPA calls ‘the community of reference’ -- is Indian country, HRI’s land must be considered Indian country, too.” The Court stated that the EPA’s analysis presupposes “that every piece of land is part of some community of reference,” but the Court rejected that argument.

The ruling is particularly significant because it was issued by the court which oversees Oklahoma, Wyoming, Kansas, Colorado, Utah and New Mexico, all of which are important energy and mineral-producing states and which also have large regions of Tribal lands.

The administration’s revised plan has been updated to reflect new scientific studies and incorporate a flexible "adaptive management" strategy for quick implementation of stronger protective measures if needed. Officials hope that will be sufficient to prevent another rejection of its plans by the federal court overseeing the matter. "While much attention has focused on the courtroom, the region should be proud of what the federal government, states, Tribes and communities together have accomplished for fish," the agencies said in a statement releasing the opinion. "Last year alone, 9,609 miles of wetland habitat were protected and 244 miles of streams were reopened to fish. We've made much progress, and completion of this legal process now prepares us to make much more."

Conservationists had hoped the plan would be much bolder, with less emphasis on hatchery fish and stronger attention to the possibility of breaching dams on the Snake River in eastern Washington that cut off salmon from miles of pristine potential habitat. The primary argument against the removal of dams is the negative impact on electricity generation, since the Northwest receives a significant portion of its power from hydroelectric sources.

The Columbia River Inter-Tribal Fish Commission is comprised of the fish and wildlife committees of the Yakama, Umatilla, Warm Springs, and Nez Perce tribes. The Tribes have treaty-guaranteed fishing rights and management authority in their traditional fishing areas.

Scholars have begun to question the Indian law credentials of Elena Kagan, President Barack Obama's nominee to the to the U.S. Supreme Court. Other than serving on the American Indian Empowerment Fund, which was established by the Oneida Nation, Kagan lacks a record on Indian law or Indian issues. Since joining the Obama administration as Solicitor General at the Department of Justice, she has written briefs in at least five Indian law cases. All of them went against tribal interests.

A particular fact of note regarding Kagan’s approach to Native legal issues is that she never filled a fully-endowed Indian law post at Harvard Law School, where she served as dean. The Oneida Nation of New York funded the The Oneida Indian Nation Professorship of Law with a $3 million donation. The position was created in 2003, under the condition that Harvard hire a full-time, tenured faculty member dedicated to Indian law. Kagan never hired a permanent, tenured faculty member dedicated to Indian law in her six years at the school.

The Honorable Barack Obama
President of the United States of America
The White House
1600 Pennsylvania Ave NW
Washington, DC 20500

RE: Solicitor General Elena Kagan’s Nomination to the Supreme Court

Dear Mr. President:

Congratulations on your nomination of Solicitor General Elena Kagan to the United State Supreme Court. We are pleased you chose a woman, and clearly General Kagan is a well qualified jurist. NNABA does not currently have a position on General Kagan’s nomination. We are not yet familiar with her experience with Tribal nations or Federal Indian law. However, we very much look forward to hearing from General Kagan about her views on the Constitutional status of Tribes and the protection of Native American rights. We would like to extend an invitation for General Kagan to meet with NNABA and invite her to Indian Country to visit one of our Nations, to visit our Tribal courts, and meet with our elected Tribal leaders.

Importance of Working Knowledge of Federal Indian law.

Due to the unique Constitutional status of Native American Tribes, a disproportionate percentage of cases before the Supreme Court deal with Tribes and Indian law issues. In addition, federal court decisions often disproportionately affect Natives. Most Indian reservation lands continue to be under “federal trust” and federal criminal law applies in conjunction with tribal law. The Supreme Court oversees this relationship with Tribes and the Federal treaty and trust responsibility to Tribal citizens. There are over 560 federally-recognized Tribes in the United States, located in 35 out of the 50 states.

A Native American has never served on the Supreme Court, there is not currently a Native on the federal bench and to the best our knowledge there have been almost no Native American Supreme Court clerks.

NNABA continues to be hopeful that your administration will nominate a Native to the federal bench, and we appreciate any efforts to ensure that all of your federal nominees have a strong working knowledge of Federal Indian law.

In a pointed editorial in Indian Country Today, Angelique EagleWoman criticizes the $3.4 billion settlement between the federal government and the Cobell lawsuit's Native American trust account plaintiffs as “a scam”. Ms. EagleWoman is a citizen of the Sisseton-Wahpeton Dakota Oyate of the Lake Traverse Reservation in South Dakota, is an attorney licensed in Washington, D.C., Oklahoma, North Dakota and South Dakota, and teaches Civil Procedure and Native American Law at the University of Idaho.

In her critique of the Cobell settlement, she notes that the normal rules for class-action lawsuits appear not to have been followed in the case, depriving individual plaintiffs of the right to “opt-out” of the case. This prevented individual Native Americans from pursuing their own separate legal remedies for the government’s alleged mismanagement of Native trust accounts and lands. She asserts that when the $1.4 billion allocated to trust account payments is broken down among the number of Native Americans with claims, the per-person dollar amount averages out to a mere $1,000.00 – with some plaintiffs to receive as little as $500.

Based on the above, I call the Cobell Proposed Settlement a scam. As a Dakota woman, a lawyer, and a law professor, I am appalled that the U.S. government would attempt to push this through Congress. The U.S. government has imposed the trust relationship on Indian peoples in mid-North America. Surely, the highest fiduciary duty is owed to individual Indians whose lands are managed by the U.S. At every step, the U.S. government has used its attorneys to fight this simple action asking for an accounting. Here in the latest round, Interior wants to sneak through this proposed settlement and stop the accounting, the claims for mismanagement, and the rights of those who are most at the mercy of the U.S. trust responsibility. This would be on par with the bleakest eras of U.S. Indian policy such as removal, assimilation and termination. We need the eagle whistle-blowers to come forth in Indian country to stop this great wrong from being perpetrated by the U.S. government. – Angelique EagleWoman

Despite the passage of three deadlines agreed to between the federal government and the plaintiffs, Congress has still not ratified the landmark $3.4 billion settlement in the decades-long Cobell Native American trust litigation. The previous deadlines for congressional ratification were December 2009, February 2010, and April 2010.

A new deadline of May 31, 2010 has been agreed to by the plaintiffs and the federal government, but it will likely be the last extension. “The district judge [Judge James Robertson, U.S. District Court for the District of Columbia] declared that he does not want further extensions of the December 7, 2009 settlement agreement, and he set a date certain in that regard,” says Dennis Gingold, lead counsel for the plaintiffs.

“That is a fair decision in view of representations made by the government that our settlement would be ratified by Congress on or before the end of December 2009. If the settlement agreement expires, plaintiffs will resume intense litigation against Treasury and Interior on all matters relevant to the case, including the renewal of matters that remain unresolved and the refiling of motions that have been dismissed without prejudice as a necessary predicate to settlement.”

The settlement agreement calls for the federal government to provide $1.4 billion in compensation for individual Native American trust fund beneficiaries, and $2 billion for a land consolidation program to be overseen by the Department of the Interior to buy back fractionated trust lands.

Secretary of the Interior Ken Salazar has approved the nation's first offshore wind farm, despite strong opposition from the Mashpee Wampanoag Tribe and environmental groups. The 130 turbines are to be located several miles from the Massachusetts shore in the waters of Nantucket Sound, which Wampanoag consider part of their sacred cultural heritage.

Salazar declared that Cape Wind, as the project is known, is the start of a "new energy frontier."
"Cape Wind will be the nation's first offshore wind farm, supplying clean power to homes and businesses in Massachusetts, plus creating good jobs here in America," he said. "This will be the first of many projects up and down the Atlantic coast."

"The United States is leading a clean energy revolution that is reshaping our future," Salazar said in announcing the project’s approval. "Cape Wind is an opening of a new chapter in that future, and we are all part of that history."

He did not make reference to another history – the Wampanoag spiritual ritual of greeting the sunrise which requires unobstructed views across the sound, and that their ancestral burial grounds are located in the area. The Wampanoag tribes — whose name translates to “people of the first light” — said their view to the east across Nantucket Sound was integral to their identity and cultural traditions. “Here is where we still arrive to greet the new day, watch for celestial observations in the night sky and follow the migration of the sun and stars in change with the season,” wrote Bettina Washington, historic preservation officer for the Aquinnah Wampanoag, in a letter to federal officials. The Tribes also argued that the wind turbines, which will be 440 feet tall, could destroy long-submerged tribal artifacts from thousands of years ago, when the sound was dry land. Such artifacts could “yield further confirmation of our cultural histories,” according to Ms. Washington.

Remarks by Ambassador Susan E. Rice, U.S. Permanent Representative to
the United Nations, at the UN Permanent Forum on Indigenous Issues,
April 20, 2010

Thank you, Mr. Chairman, Members of the Permanent Forum on Indigenous
Issues, Distinguished Representatives of indigenous groups from around
the world, Excellencies and distinguished delegates.

In his Presidential Proclamation last fall honoring Native American
Heritage Month, President Obama recognized that the “indigenous
peoples of North America—the First American—have woven rich and
diverse threads into the tapestry of our Nation’s heritage.” What is
true in the Americas is true around the world. There is no true
history that does not take into account the story of indigenous
populations—their proud traditions, their rich cultures, and their
contributions to our shared heritage and identity.

But in the United States and many other parts of the world, indigenous
communities continue to feel the heavy hand of history. Our first
nations face serious challenges: disproportionate and dire poverty,
unemployment, environmental degradation, health care gaps, violent
crime, and bitter discrimination. Far more must be done—at home and
abroad—to tackle these challenges, expand the circle of opportunity,
and work with our Native communities to ensure they enjoy the security
and dignity that all citizens deserve.

President Obama is deeply committed to strengthening and building on
government-to-government relationships among the United States and our
tribal governments. Our Administration has moved quickly to launch
programs to improve the lives of Native Americans. Shortly after his
inauguration, the President appointed my colleague, Kimberly Teehee,
as his Native American policy advisor and began extensive outreach to
tribal leaders. In November of last year, President Obama invited
representatives from each of our 564 Indian tribes in the United
States to attend a White House Tribal Nations Conference. Nearly 500
tribal leaders participated—the most widely attended White House
tribal meeting with the President, Cabinet Secretaries, senior
officials, and members of Congress in U.S. history. The President
signed a Memorandum on November 5, 2009, directing every federal
agency to develop plans to implement fully the Executive Order on
“Consultation and Coordination with Tribal Governments,” which
mandates that all agencies have an accountable process for meaningful
and timely input by tribal officials in the development of regulatory
policies that have tribal implications. The level of tribal
consultation is now at historic levels—marking a new era in the United
States’ relationship with tribal governments.

Last month, President Obama signed a historic reform of the U.S.
health care system that includes important provisions to reduce the
gaping health care disparities that Native Americans still face.
Signing and implementing this landmark law constitutes a major step
toward fulfilling our national responsibility to provide high-quality,
affordable health care to all citizens, including American Indians and
Alaska Natives.

The U.S. government has also made improving public safety in tribal
communities a high priority. The Department of Justice supports an
initiative to hire more Indian country Assistant U.S. Attorneys to
prosecute cases of violent crime on Native lands. This initiative
will also provide additional federal agents to support law-enforcement
efforts in tribal communities. Combating crimes involving violence
against women and children on Native lands is a particularly high
priority for the U.S. government.

Last year, in the face of a global economic crisis, President Obama
took swift action to spur economic activity and create new jobs. The
American Recovery and Reinvestment Act specifically allocates more
than $3 billion to assist tribal communities. These funds are being
used to renovate schools on reservations across the country, to create
new jobs in tribal economies, improve housing, support health care
facilities, and bolster policing services. The President’s Fiscal
Year 2011 budget request also proposes a 5 percent increase in federal
funding for Native American programs, to a total of $18.5 billion.

The United States also supports programs that help indigenous
communities around the world. We are especially committed to
promoting corporate social responsibility, particularly with
extractive industries whose operations can so dramatically affect the
living conditions of indigenous peoples. The United States has
therefore engaged in a multi-stakeholder initiative to encourage firms
to operate safely within a framework that fully respects the rights of
surrounding communities. We support the Initiative for Conservation in
the Andean Amazon, a regional program designed to strengthen
indigenous efforts to protect and conserve the Amazon Rainforest. In
Peru, our common efforts focus on the conservation of the Manu
National Parks, together with the Yanesha and Ashaninka peoples, by
providing training in sustainable resource management and expanding
environmental conservation capacity. The United States also
participates fully and actively in the Arctic Council, a high-level
intergovernmental forum of the eight Arctic states where Arctic
indigenous peoples -- represented by Permanent Participant
organizations -- have a co-equal role.

Consistent with President Obama’s call for a new era of U.S.
engagement with the world, the United States applauds the Permanent
Forum’s efforts to raise awareness of issues affecting the world’s
indigenous peoples and to generate ideas for substantially improving
their livelihoods and communities.

Thus today, I am pleased to announce that the United States has
decided to review our position regarding the U.N. Declaration on the
Rights of Indigenous Peoples. We recognize that, for many around the
world, this Declaration provides a framework for addressing indigenous
issues. During President Obama’s first year in office, tribal leaders
encouraged the United States to reexamine its position on the
Declaration—an important recommendation that directly complements our
commitment to work together with the international community on the
many challenges that indigenous peoples face. We will be conducting a
formal review of the Declaration and the U.S. position on it. And as
we move ahead, we look forward to consulting extensively with our
valued and experienced colleagues in the federally recognized Indian
tribes and interested nongovernmental organizations.

While many steps have been taken in the Administration’s first year,
we are not satisfied. We seek to continue to work together with our
partners in indigenous communities to provide security, prosperity,
equality, and opportunity for all. There is no American history
without Native American history. There can be no just and decent
future for our nation that does not directly tackle the legacy of
bitter discrimination and sorrow that the first Americans still live
with. And America cannot be fully whole until its first inhabitants
enjoy all the blessings of liberty, prosperity, and dignity. Let
there be no doubt of our commitment. And we stand ready to be judged
by the results. Thank you, Mr. Chairman.

Citing the fact that there is not a single Native American judge in any of the 866 federal judicial positions in the United States, the National Native American Bar Association has sent a letter to President Obama asking him to appoint a Native American to succeed retiring Justice John Paul Stevens on the US Supreme Court. A full copy of the letter can be read HERE.

With Justice John Paul Stevens announcing his retirement from the US Supreme Court this year, the Obama administration will have the opportunity to appoint a second new jurist to the bench. The Tribal Supreme Court Project is hoping the new appointee will help reverse a disturbing trend – Tribal interests losing nearly every case that comes before the Court.

"We view this Court as not favorable on our issues," explained Richard Guest, senior staff attorney at the Native American Rights Fund. "We had a winning percentage from 2001 to 2005 but now we're back to a situation where we are zero for five."

There is a concern that certain justices have an agenda in Indian law cases, he added, noting that Chief Justice John Roberts Jr. has been quoted as asking what is so special about Indian tribes and their relationship to the United States. "If this Court grants review, it appears to not only look to decide the case in front of it, but to extend any ruling to future cases," said Guest.

This view is supported by a 2009 empirical study done by Matthew Fletcher of Michigan State University College of Law: "Factbound and Splitless: Certiorari and Indian Law." From 1959, considered the beginning of the modern era of federal Indian law, to 1987, when the Supreme Court decided the major Indian gaming case, California v. Cabazon Band of Mission Indians, reported Fletcher, Indians and Indian tribes won nearly 60 percent of federal Indian law cases. Since the Cabazon decision, the Supreme Court has decided against tribal interests in more than 75 percent of cases.

The latest foray by federal courts into the anachronistic (and often bizarre) legal analysis of who qualifies as an “Indian” comes from the 9th Circuit Court of Appeals in its decision in the case of United States v. Maggi. The bottom line: unless you are a member of a federally-recognized Tribe, you are not an “Indian” under federal law.

As with most of the cases that analyze the issue of who is an “Indian”, the Maggi case arises from a dispute over whether a federal court or Tribal court has jurisdiction over a person accused of committing a crime on Tribal lands. Under current federal law, Tribal courts can only hold jurisdiction over people who qualify as “Indian”. Tribes are not allowed to exercise jurisdiction over people who are not considered “Indian” by the federal government -- making Tribal courts the last legal venue in the US where race determines access to justice.

In determining that the defendants in the Maggi case were not “Indian” and therefore not subject to Tribal court jurisdiction despite committing crimes on Tribal land, the 9th Circuit quoted from LaPier v. McCormick, 986 F.2d 303 (9th Cir. 1993):

“Is the Indian group with which (a person) claims affiliation a federally recognized Indian tribe? If the answer is no, the inquiry ends. A defendant whose only claim of membership or affiliation is with an Indian group that is not a federally acknowledged Indian tribe cannot be an Indian for criminal jurisdiction purposes.”

The extreme difficulty for unrecognized Tribes to obtain federal recognition is well known – it can take decades just to receive a “no” from the federal government. The Maggi decision reinforces the courts’ brutal concept that unless you’re a member of a federally recognized Tribe, not only are you unable to obtain sovereign rights through your Tribe – you’re not even considered an “Indian”.

This Thursday, March 18, 2010 Gonzaga University School of Law in Spokane, Washington will be the site for a far-ranging conference on legal issues of importance to Tribal communities and their advocates. Hosted by the Indian Law Section of the Spokane County Bar Association, the conference features nationally-recognized experts in numerous areas of law that are critical to Tribes. The conference itinerary includes:

The Indian Child Welfare Act – Tribal and State Perspectives (Identifying an Indian Child; Tribal staffing of ICW cases; domicile; utilizing Indian Child Welfare experts)

The Mashantucket Pequot Tribal Nation has reached a tentative agreement with the United Auto Workers Union (UAW) for a labor contract and collective bargaining on behalf of 2500 of table-game dealers at Foxwoods Resort Casino in Connecticut. The agreement is unique both for its scale – Foxwoods is billed as the largest resort casino in the United States – and for the fact that it was negotiated in the context of Tribal law rather than federal labor law.

The agreement has several facets that differ significantly from typical union labor contracts. The Nation’s laws prohibit strikes by workers and lockouts by owners, so the contract does not contain a strike provision. In the event of a labor dispute that cannot be resolved through negotiation, the matter will be submitted to private arbitration for resolution. The contract provides an average 12 percent increase in dealers' wages over two years, changes the distribution of tips for dealers, includes programs to reduce repetitive stress injuries, and creates a 24-table smoke-free gaming pit for workers and customers who prefer a smoke-free environment.

For the UAW, the agreement is being heralded as a major victory in their union organizing efforts. "Working together, we proved casino workers can successfully exercise their right to have a union under tribal law," said UAW Region 9A Director Bob Madore. "Our settlement demonstrates what we have known all along: that tribal sovereignty and employee rights need not be inconsistent. We value the investment and jobs the Mashantucket Pequot Tribe has brought to Connecticut, and we look forward to promoting this exciting resort as a destination of choice for working families and union members across New England."

For the Mashantucket Pequot Nation, the agreement may provide a measure of financial predictability for its casino operations. The casino, by far the Nation’s largest revenue source, is behind in its debt repayments and has been working with creditors to restructure its financing. The agreement with the UAW sets wage and benefit rates for two years, and eliminates the potential for labor unrest or further legal battles with the union or the federal government.

Native Talk Radio has aired an hour-long program regarding legal issues affecting Native-owned small businesses, and the unique factors of conducting business in and around Tribal communities. Host Annie O’Brien interviewed Foster Pepper’s Native American Legal Services Chair Greg Guedel on start-up considerations, contracts, government procurement programs, legal disputes, and a range of other topics pertinent to Native business ventures.

Download the podcast HERE, on Foster Pepper’s iTunes page, or from the Native Talk Radio homepage.

I am writing to inform you about a case concerning a Tribal bond issuance that has recently been decided and, in theory, has potential implications for any Tribe that currently has financing or may be seeking financing for a Tribal project.

The Decision:
On January 6, 2010, the United States District Court for the Western District of Wisconsin (the “Court”) issued an order in the case of Wells Fargo Bank, National Association, as Trustee v. Lake of the Torches Economic Development Corporation. This order invalidates the trust indenture for $46,615,000 of bonds issued by a tribal corporation of the Lac du Flambeau Band of Lake Superior Chippewa Indians (“LDF”) for the refinancing of the Lake of Torches Casino and other LDF debt. In this order, the Court ruled that the indenture amounted to a management contract and is void due to failure to seek the required National Indian Gaming Commission approval.

Some have suggested that this case may have dire consequences for all Tribes seeking financing. We have consulted with some of the top attorneys in Indian country and believe that this case is “sui generis” or unique in its facts and are hopeful that it will not have widespread application to the Native American community.

The Risk of Existing Tribal Trust Indentures or Financing Agreements Being Invalidated as Management Contracts:

The Indian Gaming Regulatory Act prohibits Tribes from entering into management agreements for casinos without review and prior approval by the Chairman of the NIGC. A financing arrangement risks being invalidated in its entirety if it includes provisions that could be construed as providing the lender with rights of management. The Court concluded that the bond indenture in the LDF financing does not comply with NIGC guidelines related to impermissible elements of management control.

Some have suggested that this case could lead to other Tribal trust indentures and financing agreements being invalidated as management contracts. We at NAFOA do not think this is the case. The trust indenture in the LDF case includes several critical provisions not commonly found in Tribal gaming financings.

One highly experienced Indian country attorney we consulted has suggested that “the trust indenture is like none [he has] ever seen and clearly does not conform with the standards set by the NIGC.” For example, according to the pleadings in this case, the indenture included provisions: 1) requiring bondholder approval of changes to specified senior management of LDF’s casino operation; 2) permitting bondholders to direct LDF to hire new management in the event of default by LDF; 3) upon certain financial covenant violations, requiring LDF to retain an independent gaming management consultant and thereafter use “best efforts” to implement the recommendations of such consultant; and 4) permitting the appointment of a receiver over casino revenues and casino equipment in the event of a default by LDF. The Court concluded that these provisions, among others, overstep NIGC rules concerning a lender’s ability to assert management powers within a financing agreement.

We believe that few trust indentures or other financing agreements in Indian country are likely to have provisions similar to the ones mentioned above and we think this will limit the applicability of this case to other Tribes. Thus, it is our hope that Tribes and their lenders need not be concerned about the validity of their financing agreements.

We do however have some concerns about the broad language used by the Court in this case. In addition to the provisions noted above, the Court included references to some commonly used provisions often found in trust indentures and loan agreements. We are hopeful that the National Indian Gaming Commission will provide some guidance so as to avoid confusion about which of the provisions, taken together or separately, would constitute a management contract if included in a trust indenture or loan agreement.

When the Lac du Flambeau Tribe fell behind on repaying $50 million in bonds that financed its casino in northern Wisconsin, bond issuer Wells Fargo asked a federal judge to appoint a receiver to run the casino and increase payments on the debt service. As reported on Turtletalk, the judge refused based on principles of Tribal sovereignty, leaving the bank and bondholders with few legal options other than negotiating with the Tribe.

In 2008, the Lac du Flambeau issued bonds to provide capital for the construction and operation of its casino. The bonds carried interest at 12% and required a monthly payment from the Tribe of approximately $800,000. With the economy plunging and over $46 million still to be repaid on the bonds, the Tribe stopped setting aside money to service the debt. Wells Fargo then filed suit in federal court to appoint a receiver to run the casino, in accordance with the terms of the bond agreement the Tribe executed with the bank.

The Tribe argued that the receivership clause in the bond agreement was so broad that it was actually a management agreement that would require approval by the National Indian Gaming Commission. The Commission had not been involved in negotiating the deal and did not provide any approval, therefore the Tribe argued that the agreement was void. The judge’s refusal to appoint a receiver essentially validated that position, leaving Wells Fargo with no direct ability to take control over the casino’s operations. “The entire agreement is a void issue,” said Tribal administrator William Beson.

The judge’s decision means the Tribe is not legally responsible to pay back the money, said Monica Riederer, the Tribe’s attorney. However, she said that does not mean the Tribe will completely renege on the debt. “They will do whatever they’re legally required to do,” Riederer said. Meanwhile, investors and Tribes across the country will no doubt closely monitor the impact this situation has on the ability of Tribal entities to obtain future bond financing. Having no ability to enforce collection of a bond debt is “a nightmare for investors,” said Megan Neuburger, an analyst who follows the Indian gaming industry for Fitch Ratings. “It’s sort of an investor’s worst-case fear.”

The once-per-decade United States Census kicks off in April 2010, and the manager for the U.S. Census Bureau’s American Indian/Alaska Native Program is leading a focused effort to obtain an accurate count of the Native American and Alaska Native populations within the United States.

Program Director Curtis Zunigha, a member of the Delaware Tribe of Indians in Oklahoma, is already undertaking population counts in isolated sectors of Alaska, even though Census Day is April 1. “We’re actually beginning our remote Alaska operation in January. Many of the Alaska Natives engage in subsistence hunting and fishing in the spring in camps that our enumerators wouldn’t be able to find and they’re not going to get anything in the mail, so we’re going in early to the Native village of Noorvik. They’re a partner and the Tribal leadership has agreed to host the very first enumeration.”

Partnership is the key to a successful census, Zunigha said.

“After the first enumeration in Noorvik, we’ll be going village to village all across those remote areas all through the State of Alaska and getting these people counted early. And all the work that’s gone into building relationships and partnerships with the Native tribes and villages, all the outreach that’s gone into it to make people aware of the census, hiring people from the villages to be enumerators – all of that is a model of what we’re doing all across Indian country. If it happens the way we’ve planned in Noorvik, I expect a very positive response from Indian country over all.”

Data from the census is a primary element in determining the distribution of more than $400 billion in federal funding nationwide. For Native communities, that means funding for Indian Child Welfare, Children and Family Education, employment assistance, food distribution, Temporary Assistance for Needy Families, housing, community development block grants, and numerous other programs. The data will affect policy and resource allocations for human service programs for Native communities throughout the country.

According to Zunigha, one of the most challenging aspects of census taking in Native communities is establishing trust.

“The whole idea of mistrust of the federal government – that’s no secret in Indian country – but I think the best thing to overcome that is to emphasis the partnership aspect of the way we’re doing the census in Indian country.”

“Tribal leaders know true tribal sovereignty and self-determination means you don’t let somebody else come in and figure out this data for us. We do it ourselves and we can do our own planning and development for business and communities. I fully expect tribal demographers and data analysts to be using the reports that will be generated. You can bet the people like Harrahs and Bally's and other casino companies are using census data to do long range planning for site locations and businesses. So a good and successful census for Indian country only helps support tribal sovereignty and self-determination.”

The University of California Irvine radio station KUCI’s legal program The Docket has aired an extended segment on the settlement of the landmark Cobell lawsuit between 300,000+ Native Americans and the U.S. government. Host Evan Simon interviewed Foster Pepper PLLC’s Native American Group Chair Greg Guedel regarding the background of the case, the details of the settlement, his discussion with lead plaintiff Eloise Cobell, and what work remains to complete the settlement and lay the groundwork for improved relations between the federal government and Native Americans. The interview can be accessed HERE, or via the Foster Pepper podcast page on iTunes.

In a break from long-standing land control policies, the Nisga’a First Nation in British Columbia is set to begin allotting property to its members, who can then mortgage, lease, or sell it – even to non-Nation members.

The new policy is part of an ongoing effort to improve the economic circumstances of the Nisga’a. After three years of study, the Nisga’a government has concluded that restrictions on private property ownership by its members has been a significant obstacle to financial growth. The new policy will provide Nisga’a members with freehold title to their homes, which they can then sell or mortgage as they please, and the policy may soon be extended to the Nation’s commercial and industrial properties.

This new policy from a First Nation in Canada will contrast sharply with policies among Tribal nations located within the United States. The property allotment policy implemented by the federal government during the 20th Century is generally viewed as having been an economic and social disaster for Native communities. The selling off of Tribal lands, typically at below-market value in order to obtain much needed cash, resulted in the “checkerboarding” of Native reservations and an alienation of Native peoples from their traditional homelands. Tribes also lost control of significant mineral wealth and water/mining rights due to the loss of ownership of their lands. Most Tribes within the U.S. have spent the decades since the end of allotment trying to regain lost lands and return them to permanent Tribal status.

In an earlier proceeding, the Court determined that the Makah, Quileute, and Quinault nations had usual and accustomed fishing grounds in the Pacific Ocean. It was determined that the Makah’s usual and accustomed fishing grounds “included the waters of the Strait of Juan de Fuca . . . extending out into the ocean to an area known as Swiftsure and then south along the Pacific coast to an area intermediate to Ozette village and the Quileute Reservation,” as well as certain rivers and lakes. The Court determined that Quileute usual and accustomed grounds included certain rivers, lakes and streams and “the adjacent tidewater and saltwater areas”, and that the Quinault utilized “ocean fisheries” in “the waters adjacent to its territory.” See 384 F. Supp. at 374 (FF 120).

However, the Court did not define the precise boundaries of the nations’ “usual and accustomed fishing grounds” in the Pacific Ocean, and the Court’s decision was limited to waters within the jurisdiction of the State of Washington and within three miles of shore. The question of precise ocean boundaries for the nations’ respective fishing rights remains unresolved. The Request for Determination filed by the Makah Tribe alleges:

On the basis of the information Makah assembled in response to the threat posed by Quileute’s and Quinault’s intent to participate in the Pacific whiting fishery in the manner described above, it appears that Quileute and Quinault have authorized and currently are conducting fisheries for salmon, halibut and black cod outside of their actual usual and accustomed fishing areas. Although Makah, Quileute and Quinault have been able to resolve disputes over these fisheries in the past, the Quileute and Quinault fisheries for these species compete directly with Makah fisheries for the same species.

It is interesting to note that the nations had previously worked out such issues through direct negotiation, but now have placed the power over their respective jurisdictions and economic rights in the hands of a federal judge.

Secretary of the Interior Ken Salazar and Attorney General Eric Holder today announced a settlement of the long-running and highly contentious Cobell class-action lawsuit regarding the U.S. government's trust management and accounting of over three hundred thousand individual American Indian trust accounts. Also speaking at the press conference today were Deputy Secretary of the Interior David Hayes and Associate Attorney General Tom Perrelli.

“This is an historic, positive development for Indian country and a major step on the road to reconciliation following years of acrimonious litigation between trust beneficiaries and the United States,” Secretary Salazar said. “Resolving this issue has been a top priority of President Obama, and this administration has worked in good faith to reach a settlement that is both honorable and responsible. This historic step will allow Interior to move forward and address the educational, law enforcement, and economic development challenges we face in Indian Country.”

“Over the past thirteen years, the parties have tried to settle this case many, many times, each time unsuccessfully," said Attorney General Eric Holder. "But today we turn the page. This settlement is fair to the plaintiffs, responsible for the United States, and provides a path forward for the future.”

Under the negotiated agreement, litigation will end regarding the Department of the Interior’s performance of an historical accounting for trust accounts maintained by the United States on behalf of more than 300,000 individual Indians. A fund totaling $1.4 billion will be distributed to class members to compensate them for their historical accounting claims, and to resolve potential claims that prior U.S. officials mismanaged the administration of trust assets.

In addition, in order to address the continued proliferation of thousands of new trust accounts caused by the "fractionation" of land interests through succeeding generations, the settlement establishes a $2 billion fund for the voluntary buy-back and consolidation of fractionated land interests. The land consolidation program will provide individual Indians with an opportunity to obtain cash payments for divided land interests and free up the land for the benefit of tribal communities.

By reducing the number of individual trust accounts that the U.S must maintain, the program will greatly reduce on-going administrative expenses and future accounting-related disputes. In order to provide owners with an additional incentive to sell their fractionated interests, the settlement authorizes the Interior Department to set aside up to 5 percent of the value of the interests into a college and vocational school scholarship fund for American Indian students.

The settlement has been negotiated with the involvement of the U.S. District Court for the District of Columbia. It will not become final until it is formally endorsed by the court. Also, Congress must enact legislation to authorize implementation of the settlement. Because it is a settlement of a litigation matter, the Judgment Fund maintained by the U.S. Departments of Justice and Treasury will fund the settlement.

“While we have made significant progress in improving and strengthening the management of Indian trust assets, our work is not over,” said Salazar, who also announced he is establishing a national commission to evaluate ongoing trust reform efforts and make recommendations for the future management of individual trust account assets in light of a congressional sunset provision for the Office of Special Trustee, which was established by Congress in 1994 to reform financial management of the trust system.

The class action case, which involves several hundred thousand plaintiffs, was filed by Elouise Cobell in 1996 in the U.S. District Court for the District of Columbia and has included hundreds of motions, dozens of rulings and appeals, and several trials over the past 13 years. The settlement funds will be administered by the trust department of a bank approved by the district court and distributed to individual Indians by a claims administrator in accordance with court orders and the settlement agreement.

Interior currently manages about 56 million acres of Indian trust land, administering more than 100,000 leases and about $3.5 billion in trust funds. For fiscal year 2009, funds from leases, use permits, land sales and income from financial assets, totaling about $298 million were collected for more than 384,000 open Individual Indian Money accounts and $566 million was collected for about 2,700 tribal accounts for more than 250 tribes. Since 1996, the U.S. Government has collected over $10.4 billion from individual and tribal trust assets and disbursed more than $9.5 billion to individual account holders and tribal governments.

The land consolidation fund addresses a legacy of the General Allotment Act of 1887 (the “Dawes Act”), which divided tribal lands into parcels between 40 and 160 acres in size, allotted them to individual Indians and sold off all remaining unallotted Indian lands. As the original holders died, their intestate heirs received an equal, undivided interest in the lands as tenants in common. In successive generations, smaller undivided interests descended to the next generation.

Today, it is common to have hundreds—even thousands—of Indian owners for one parcel of land. Such highly fractionated ownership makes it extremely difficult to use the land productively or to provide beneficial use for any individual. Absent serious corrective action, an estimated 4 million acres of land will continue to be held in such small ownership interests that very few individual owners will ever derive any meaningful financial benefit from that ownership.

Additional Information is available at the following sites: www.cobellsettlement.com.
The Department of the Interior website: www.doi.gov. The Office of the Special Trustee website: www.ost.doi.gov

While crime continues to be a blight on Native lands, The Tribal Law and Order Act of 2009 (S.797) is currently awaiting action in the United States Senate. This bill was considered in committee, which has recommended it be considered by the Senate as a whole. Although it has been placed on a calendar of business, the order in which legislation is considered and voted on is determined by the majority party leadership, which is currently led by Democrat Harry Reid of Nevada. In the midst of intensive debate regarding health care reform, the chances for the Act to become law are unclear.

The Act would amend the Indian Law Enforcement Reform Act to make a variety of changes to increase Tribes' law enforcement powers, and increase federal powers and responsibilities regarding crimes on Native land. The Act’s provisions include:

(1) Allowing federal officials, with the consent of the Tribe, to investigate offenses against Tribal criminal laws;

(2) Providing technical assistance and training to Tribal law enforcement officials regarding use of the National Criminal Information Center database;

(3) Requiring federal and local officials, when they decline to investigate crimes on Native land, to report to Native officials and requiring such officials, when they decline to prosecute, to turn over evidence to Native officials;

(4) Establishing in the criminal division of the Department of Justice an Office of Indian Country Crime to develop, enforce, and administer federal criminal laws in Tribal territories;

(5) Authorizing, at the request of a Tribe, concurrent federal-Tribal jurisdiction;

(6) Authorizing grants to state, Tribal, and local governments that enter into cooperative agreements, including agreements relating to mutual aid, hot pursuit of suspects, and cross-deputization;

(7) Requiring the Attorney General to allow Tribal and Bureau of Indian Affairs law enforcement agencies to directly access and enter information into federal criminal information databases (under current law, such access is limited); and

(8) Increasing the criminal sentences Tribal courts may impose.

The bill is supported by numerous agencies including the National Congress of American Indians, National American Indian Court Judges Association, National Indian Gaming Association, and Amnesty International. No organizations have registered a formal objection to the legislation.

The Navajo Nation court system is the largest and most established Tribal legal system in the United States. Since the landmark 1959 U.S. Supreme Court decision in Williams v. Lee that affirmed Tribal court authority over reservation-based claims, the Navajo Nation has been at the vanguard of a far-reaching, transformative jurisprudential movement among Indian tribes in North America and indigenous peoples around the world to retrieve and use traditional values to address contemporary legal issues.

In the new book published by the University of Minesota, Navajo Courts and Navajo Common Law, Justice Raymond D. Austin considers the history and implications of how the Navajo Nation courts apply foundational Navajo doctrines to modern legal issues. He explains key Navajo foundational concepts like Hózhó (harmony), K’é (peacefulness and solidarity), and K’éí (kinship) both within the Navajo cultural context and, using the case method of legal analysis, as they are adapted and applied by Navajo judges in virtually every important area of legal life in the tribe.

In addition to detailed case studies, Justice Austin provides a broad view of tribal law, documenting the development of tribal courts as important institutions of indigenous self-governance and outlining how other indigenous peoples, both in North America and elsewhere around the world, can draw on traditional precepts to achieve self-determination and self-government, solve community problems, and control their own futures.

“Justice Austin, always a trailblazer, is one of the main architects of Navajo common law. Now he has given us a comprehensive explanation of his nation’s common law in all its power, fairness, and beauty. This book should be read by people the world over who believe in searching out the authenticity of law and society in its truest and most profound meanings.” Charles Wilkinson, author of Blood Struggle: The Rise of Modern Indian Nations.

Justice Austin is the Indigenous Peoples Law and Policy Program’s Distinguished Jurist in Residence at the James E. Rogers College of Law at the University of Arizona. A member of the Arizona and Utah state bars and the Navajo Nation Bar Association, he served on the Navajo Nation Supreme Court from 1985 to 2001. Justice Austin is Diné from the Navajo Nation.

In November of 1969, Richard Oakes led a landing party named “Indians of All Tribes” onto boats and took up residence on Alcatraz. The prison had been closed six years earlier and was considered surplus property by the federal government. Citing treaty language from the 19th Century that indicated the US government’s intent to set aside such properties for Native peoples, the group occupied the island “to focus attention on broken treaties, broken promises and termination of tribal areas," says Professor Troy Johnson, chairman of the American Indian studies program at California State University. The U.S. 16 years earlier had begun a policy of terminating Indian reservations and relocating the inhabitants to urban areas.

Adam Fortunate Eagle released a public declaration of the group's intentions. To the amusement of local Bay Area residents and the chagrin of federal authorities, he recounted European exploitation over the centuries, and stated that the Native group claimed Alcatraz by “right of discovery” and that they would pay for the island with $24 worth of goods – equal to the amount paid by the Dutch to acquire Manhattan Island from Native peoples in 1626.

At the height of the occupation, 400 Native Americans were in residence on Alcatraz, receiving regular news coverage and logistical assistance from many quarters. In 1971, authorities peacefully ended the occupation after 19 months by going in when the group was at its smallest. President Nixon ended the U.S. tribal termination policy in June 1970, while they still were on the island. Fortunate Eagle says the occupation was the most significant event in Native American history since the 1876 Battle of the Little Bighorn: "It brought the Indian issues to the forefront of the public awareness."

In conjunction with the 5 November 2009 Tribal Nations conference, President Obama has issued a White House Memorandum on Tribal Consultation to all executive departments and federal agencies. The Memorandum can be accessed here, and its full text is below:

The United States has a unique legal and political relationship with Indian tribal governments, established through and confirmed by the Constitution of the United States, treaties, statutes, executive orders, and judicial decisions. In recognition of that special relationship, pursuant to Executive Order 13175 of November 6, 2000, executive departments and agencies (agencies) are charged with engaging in regular and meaningful consultation and collaboration with tribal officials in the development of Federal policies that have tribal implications, and are responsible for strengthening the government-to-government relationship between the United States and Indian tribes.

History has shown that failure to include the voices of tribal officials in formulating policy affecting their communities has all too often led to undesirable and, at times, devastating and tragic results. By contrast, meaningful dialogue between Federal officials and tribal officials has greatly improved Federal policy toward Indian tribes. Consultation is a critical ingredient of a sound and productive Federal-tribal relationship.

My Administration is committed to regular and meaningful consultation and collaboration with tribal officials in policy decisions that have tribal implications including, as an initial step, through complete and consistent implementation of Executive Order 13175. Accordingly, I hereby direct each agency head to submit to the Director of the Office of Management and Budget (OMB), within 90 days after the date of this memorandum, a detailed plan of actions the agency will take to implement the policies and directives of Executive Order 13175. This plan shall be developed after consultation by the agency with Indian tribes and tribal officials as defined in Executive Order 13175. I also direct each agency head to submit to the Director of the OMB, within 270 days after the date of this memorandum, and annually thereafter, a progress report on the status of each action included in its plan together with any proposed updates to its plan.

Each agency's plan and subsequent reports shall designate an appropriate official to coordinate implementation of the plan and preparation of progress reports required by this memorandum. The Assistant to the President for Domestic Policy and the Director of the OMB shall review agency plans and subsequent reports for consistency with the policies and directives of Executive Order 13175.

In addition, the Director of the OMB, in coordination with the Assistant to the President for Domestic Policy, shall submit to me, within 1 year from the date of this memorandum, a report on the implementation of Executive Order 13175 across the executive branch based on the review of agency plans and progress reports. Recommendations for improving the plans and making the tribal consultation process more effective, if any, should be included in this report.
The terms "Indian tribe," "tribal officials," and "policies that have tribal implications" as used in this memorandum are as defined in Executive Order 13175. The Director of the OMB is hereby authorized and directed to publish this memorandum in the Federal Register.

This memorandum is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person. Executive departments and agencies shall carry out the provisions of this memorandum to the extent permitted by law and consistent with their statutory and regulatory authorities and their enforcement mechanisms.

The Wall Street Journal reports that Mexican drug gangs are attempting to increase profits and eliminate clashes with border police by growing more marijuana inside the United States – and specifically in remote areas of Native American reservations. In Washington state alone, the number of marijuana plants seized on Tribal lands has increased by a factor of 10 since 2006.

Drug growers typically seek to operate in geographically remote areas that are rarely inspected by law enforcement. In past years, America’s large National Parks were a prime growing area until federal enforcement was stepped up to curtail the practice. Isolation and lack of law enforcement funding has now placed many Tribal territories on the list of desired drug growing locations. For example, the Colville Reservation in eastern Washington state encompasses 2,200 square miles but is patrolled by only 19 Tribal police officers. Many reservations have thousands of acres of uninhabited land that usually go unnoticed by local residents and police, making them desirable target areas for drug growers.

While the upswing in drug growing activity is a troubling development, efforts to counter the trend may also provide an opportunity to improve public safety on reservations. The chronic lack of state and federal funds for law enforcement on Tribal lands has long contributed to increased crime rates and a backlog of unresolved cases. Now that Native American reservations have become part of the front line of the war on drugs, perhaps increased resources will be applied to raise the standard and efficiency of law enforcement activity in Tribal territories.

You have your community and your place to go. We don't have that. But we're still together…

They've got their rules, and you've got to fit into the slot. But we know who we are.

It kind of hurts, naturally, but it's not the end of the line…

These sentiments were expressed by members of Montana's Little Shell Tribe, after receiving notice this week that their petition for federal recognition had been denied – more than 30 years after it was first filed.

The Bureau of Indian Affairs’ 242-page rejection decision acknowledged that 89 percent of the Little Shell can trace their lineage to the Pembina Band of Chippewa Indians, but stated the Little Shell had failed to show enough "cohesion" during the early 1900s, after many of the Tribe's members had been uprooted and migrated between northern Montana and southern Canada. The Tribe has not had a secure homeland since the late 1860s, when Chief Little Shell and his people were excluded from a federal treaty signed with related Tribes.

As discussed previously on this site, the BIA uses an extremely complex and subjective set of criteria in analyzing petitions for federal recognition. For Little Shell, the BIA decided that members of the Tribe in Montana lived primarily in "already existing, largely multiethnic settlements." According to the BIA, "In none of these multiethnic settlements did the petitioner's ancestors constitute a majority or even a significant percentage of the population." Little Shell’s petition was thus denied based on a perceived lack of social and political cohesion.

For Tribes like Little Shell, the next step in the struggle for recognition is to seek legislative backing in Congress, in the hope that recognition can be obtained through pressure and laws enacted by elected representatives. Hopes for progress in this area were briefly raised by the announcement of President Obama's upcoming Tribal Nations conference in November. Unfortunately, invitations to the event were only sent to a select group of Tribes – those that already possess federal recognition.

President Barack Obama will host a White House Tribal Nations Conference on November 5, 2009 from 9 a.m. – 5:30 p.m., with leaders of all 564 federally recognized Tribes invited. Each federally recognized Tribe can send one representative; it is unclear whether Tribes that do not yet have federal recognition can attend. Indian Country Today reports that the meeting will be held at the Sidney R. Yates Auditorium of the Department of the Interior in Washington D.C..

“I look forward to hearing directly from the leaders in Indian country about what my administration can do to not only meet their needs, but help improve their lives and the lives of their peoples,” Obama said. “This conference will serve as part of the ongoing and important consultation process that I value, and further strengthen the nation-to-nation relationship.”

W. Ron Allen, a member of the executive board of the National Congress of American Indians and Chairman of the Jamestown S’Klallam Tribe, said the White House would have been a more impressive setting, but believes it’s important to hold the meeting in an environment that will be conducive to constructive dialogue. Allen emphasized that Tribal leaders expect to be able to present their views and receive specific answers and policy outlines from the President. “We do not want this to be a photo op.”

Allen said many NCAI members want the President to begin showing action on campaign promises to advance self-determination, self-governance and self-reliance for all 564 American Indian and Alaska Native nations. “We are hopeful that he will reaffirm and strengthen his administration’s commitment to the ‘government-to-government’ relationship including clear instruction to all departments and agencies under his executive authority,” Allen said.

MyTribeTV, a Native-owned business in Seattle, will provide online coverage of the conference. The event will be streamed at tribalsummit.mytribetv.com.

In its new report entitled "Voting Rights In Indian Country", the American Civil Liberties Union states that Native Americans continue to face a a variety of discriminatory election practices, including: at large elections; redistricting plans that diluted Native American voting strength; the failure to comply with one person, one vote; unfounded allegations of election fraud on Indian reservations; discriminatory voter registration procedures; onerous identification requirements for voting; the lack of minority language assistance in voting; and the refusal to comply with the preclearance provisions of Section 5 of the Voting Rights Act. The report's findings are based on the ACLU's investigations conducted for voting rights litigation cases in Colorado, Montana, Nebraska, South Dakota, and Wyoming.

The report recounts a litany of abuses endured by Native communities throughout the 19th and 20th Centuries, and draws a line of impact to the present day.

One consequence is a depressed socio-economic status that limits the ability of tribal members to participate effectively in local, state, and national elections and to enforce the anti-discrimination provisions of the Voting Rights Act and other federal laws protecting minority voting rights. Voting is significantly polarized along racial lines, and little meaningful interaction exists between the Indian and non-Indian communities, especially in the towns and communities that border the reservations. This lack of interaction and access to the majority community makes it very difficult for Indians to elect candidates of their choice to office in jurisdictions in which they are a numerical minority.

Indian political participation is further diminished by the disproportionate number of tribal members disfranchised for commission of criminal offenses. There is a pattern of racial profiling of Indians by law enforcement officers, the targeting of Indians for prosecution of serious crimes, and the imposition of lengthier prison sentences upon Indian defendants. These injustices result in the higher incarceration of Indians and dilute the overall voting strength of Indian communities.

President Barack Obama will host a Tribal Nations Conference discussing issues of importance to Native Americans on November 5, the White House announced Monday. Representatives from each the country’s 564 federally recognized tribes will be invited to participate.

“I look forward to hearing directly from the leaders in Indian Country about what my administration can do to not only meet their needs, but help improve their lives and the lives of their peoples,” Obama said in a written statement. “This conference will serve as part of the ongoing and important consultation process that I value, and further strengthen the nation-to-nation relationship.”

Tucked within the voluminous pages of a military spending bill, the Senate has approved a resolution apologizing to Native Americans for years of “ill-conceived policies” and acts of violence by United States citizens. Lawmakers have called the resolution “a symbolic gesture meant to promote a renewed commitment to Tribal communities”. It was introduced by Senators Sam Brownback, Republican of Kansas, and Byron L. Dorgan, Democrat of North Dakota. The Senate approved a similar resolution in 2008, but the House of Representatives took no action to endorse it or enact it into law.

“I am pleased that my colleagues have decided to move forward with a formal apology from the federal government to Native Americans. This is a resolution of apology and reconciliation, and is a step toward healing divisive wounds. With this resolution we have the potential to start a new era of positive relations between tribal governments and the federal government. For too much of our history, federal-tribal relations have been marked by broken treaties, mistreatment and dishonorable dealings. With this resolution, we can acknowledge past failures, express sincere regrets and establish a brighter future for all Americans.”

However, the website goes on to state:

The Native American Apology Resolution will not authorize or serve as a settlement of any claim against the United States. The resolution does not denigrate the bravery and self-sacrifice of Americans who have honorably served the nation in the military throughout our history. Rather, this resolution is intended to be the beginning of a much-needed reconciliation.

The Grand Governing Council of the American Indian Movement (AIM) has released the following statement in response to President Obama's recent address before the United Nations General Assembly in New York.

In President Obama's speech to the United Nations on September 23, 2009, he spoke of a 'new direction'. Two years ago, four solitary nations voted against the United Nations Declaration on the Rights of Indigenous People, they were Canada, Australia, New Zealand, and the United States of America. The Australian government has since reversed its vote and now support the international human rights standard toward Indigenous people. The American Indian Movement asks the question of the Obama Administration: Will his administration recognize and support the international standard approved by the vast majority of the world's nations?

The United Nations' 64th year brings world leaders together to our sacred homeland to discuss the effects of the world's problems to humankind. The American Indian Movement respects the right of all world leaders to speak. We support the right of Moammar Al Gathafi, leader of Libya. We respect the right of Evo Moralas, President of Bolivia. We respect the right of Hugo Chavez, President of Venezuela. We respect the right of Mahmoud Ahmadinejad, President of Iran. We respect the right to speak at the United Nations of all the world leaders visiting our homeland.

We often talk in terms of the first world, or the west; or the second world, the east; or the third world, or the non-aligned nations. Another important dimension to this concept is the fourth world of natural and Indigenous people. Peoples whose populations oftentimes go beyond geo-political boundaries. While these struggles have been going on for hundreds of years, the international community has, for the most part, ignored this reality. One of the greatest crimes against humanity occurred right here in the United States of America. Support for the Declaration on the Rights of Indigenous People is a start to right this great wrong.

As reported in the Wall Street Journal, the Department of Interior is reconsidering a Bush administration policy that limited Tribes from developing off-reservation casinos unless the sites were within “commuting distance” of the reservation. The new policy would eliminate that proximity requirement and allow Tribes to build casinos on trust land farther from their reservations – and thereby likely closer to larger population centers that would offer more customers. Some areas Tribes are considering are actually on their ancestral lands, but were separated from the Tribe’s main land base through 19th Century treaties.

Over 20 Tribal casinos on non-reservation land exist, and about 20 tribes have off-reservation plans in the works. The Confederated Tribes of Warm Springs of Oregon want to develop a casino along the Columbia River Gorge, and the St. Regis Mohawks have plans for a site in the Catskill Mountains, about 350 miles away from the Tribe's reservation -- but less than a two-hour drive from New York City. Some state governors such as David Paterson of New York and Arnold Schwarzenegger of California have come out in favor of certain projects in recent months.

Despite concerns about the economy, some off-reservation casino projects near major population centers have been able to line up financing for construction and operations. A private investment company that has financed start-ups of major Indian casinos in Connecticut and New York, is acquiring a near 50% stake in Empire Resorts Inc., the company that has been working with the St. Regis Mohawks on plans for a casino in Monticello, N.Y.

Tribes across the country have opened hundreds of casinos since the 1987 U.S. Supreme Court ruling that loosened state restrictions on Tribal gaming. In 1988, Congress authorized development off-reservation casinos. Interestingly, some Tribes that developed the first casinos are now working to block off-reservation gaming by other Tribes, and Senators from Nevada, California and Arizona wrote Interior Secretary Ken Salazar to oppose off-reservation gaming, saying it "violates the spirit" of Tribal gaming law.

Foster Pepper PLLC and KeyBank are Co-Sponsors of the huge Native American Economic Development Conference to be held at the Westin in Las Vegas September 16-18, 2009. The far-ranging seminar will cover topics of immense importance to Tribal economies, including:

Tribal Leaders Roundtable: The Impact of President Obama’s Administration

Economic Development Bonds and the Federal Stimulus Package: Effects on Tribal Financing

The looming cash crunch highlights the different economic and legal landscape in which Tribal enterprises operate. “They can’t do the types of things other debtors can in a restructure,” says Megan Neuburger, an analyst at Fitch Ratings in New York. “Tribal casinos can’t do a debt-for-equity swap. They can’t raise cash by selling off assets on Tribal land to repay creditors." Standard & Poor’s has cut its Mashantucket rating four steps to CCC and placed the debt on credit watch. Creditors probably can’t take over assets or operations of casinos on Tribal land, which are sovereign nations, as they may with commercial bankruptcies, Neuburger said. That leaves them little choice other than to restructure debts and work with the Tribe.

No Tribal casino has yet tested federal bankruptcy laws. “Bankruptcy law does not apply to Tribal situations in the same way it does to a commercial situation,” Neuburger said. Michael Thomas, chairman of the Mashantucket Pequot Tribal Council, told members that the Tribal government would be paid first, before bankers or bondholders. “It might be posturing, but the Tribe is indicating that it might put itself, the equity holder, ahead of the debt, ignoring corporate law,” said Lawrence Klatzkin of municipal bond broker Chapdelaine Credit Partners. “It probably won’t happen, but if it does, who’s to say other Tribes don’t say, ‘If Foxwoods doesn’t need to meet its U.S. legal obligations, maybe I don’t either.’”

Foster Pepper PLLC and KeyBank are Co-Sponsors of the huge Native American Economic Development Conference to be held at Caesar's Palace in Las Vegas September 16-18, 2009. The far-ranging seminar will cover topics of immense importance to Tribal economies, including:

Tribal Leaders Roundtable: The Impact of President Obama’s Administration

Economic Development Bonds and the Federal Stimulus Package: Effects on Tribal Financing

The National Indian Gaming Association has asked the Obama administration to replace the chairman of the National Indian Gaming Commission immediately, and stop the current commission from publishing proposed revisions to gaming regulations until the new official is in place. In a letter to the President, NIGA asserts the Commission violates government-to-government consultation rules and is revising gaming machine regulations that would impose huge and unnecessary compliance costs on Tribal gaming operations, and “overreaching” because they exceed the NIGC’s statutory authority.

NIGA is a nonprofit organization representing Tribal nations and businesses engaged in gaming enterprises, and acts as an educational, legislative and public policy resource for tribes, policymakers, and the public on gaming issues and Tribal community development. NIGA has asked Obama and Interior Secretary Ken Salazar to immediately replace NIGC Chairman Philip Hogen, who “is holding out for almost five years past his original term,” and appoint a new commissioner to fill a seat that has been vacant for years. The Chairman’s position is a Presidential appointment approved by the Senate.

Barbara Kyser-Collier, Quapaw Tribal Gaming Agency director, has written to Obama seeking “urgent action” in appointing a new NIGC chairman. “It is beyond understanding that a federal agency established to protect tribal gaming as a source of revenue for tribal governmental services and functions, in fact, would persist in efforts to disseminate regulations that will inflict financial damage to Native American tribes,” Kyser-Collier said.

The proposed new gaming rules would also extend NIGC’s authority beyond its statutory limits, Kyser-Collier wrote. For example, NIGC has inserted into the proposed regulations a new technical standard that would require a jackpot payout be validated by the backroom accounting system. This would require a type of technology that is usually patented in a manufacturer’s gaming system, requiring the gaming operation either to have that particular manufacturer’s system or to pay the manufacturer a royalty fee to use its proprietary technology. “The NIGC characterizes these potential regulations as ‘internal control standards,’ when in fact they constitute product standards. A most important danger is that such rules could favor certain manufacturers and drive tribal costs higher,” Kyser-Collier said.

The Indian Law Resource Center has released its annual report highlighting work undertaken to defend the rights of Native American nations and other indigenous peoples in the Americas. Attorneys and Board Members from the ILRC played a central role in the adoption of the United Nations Declaration on the Rights of Indigenous Peoples, and are working to educate and encourage Native communities to use the Declaration to strengthen their rights of self-determination, protect their human rights, and control their own land and natural resources.

The Blackfeet Nation has entered into a ground-breaking agreement with neighboring Glacier County for fully reciprocal cross-deputization, a law enforcement pact that both parties called unprecedented. "This is truly a historic document," Tribal Attorney Sandra Watts told the Blackfeet Business Council. "It goes beyond anything else in the nation. In the past, there have been one-way agreements, but nothing that's truly reciprocal."

The agreement formalizes a working agreement that's been in effect for the past month, but it's also limited to the next 60 days as a trial period. "When their deputies come onto our reservation, they become officers of the Tribe and they can enforce both the tribal and state laws," Watts told the council. "And when our Tribal police officers are off the reservation in Glacier County, they can enforce state laws."

Previously, county deputies had been issued commission cards from the Tribe allowing them to enforce state law on non-Indians living on the Blackfeet Indian Reservation, but those cards were revoked last year. That left deputies unable to arrest non-Natives living on the reservations who committed crimes or who had warrants against them in state courts. The major difference is that race is a factor on the reservation — Native Americans are issued warrants for Tribal Court, while non-Natives are issued warrants for magistrate court or district court . Off the reservations, all warrants are for magistrate or district court.

The lawsuit was filed 13 years ago and claims compensation for Native Americans for land-related royalties from the profits of oil, gas, grazing, and timber – commodities that were taken from Tribal lands that the government has managed in trust for Tribal members since the 19th Century. In 2008, U.S. District Judge James Robertson ruled that an accurate accounting by the Department of Interior was impossible, and awarded the group of plaintiffs $455 million, a fraction of the $47 billion+ being claimed in the lawsuit.

The U.S. Court of Appeals for the D.C. Circuit disagreed with this result, and found that the lower court erred in eliminating the government accounting. Chief Judge David B. Sentelle said the decision essentially allowed the Interior Department "to throw up its hands and stop the accounting." "Without an accounting, it is impossible to know who is owed what," Sentelle wrote. "The best any trust beneficiary could hope for would be a government check in an arbitrary amount."

The D.C. Circuit panel acknowledged that the task is complicated and the Interior Department should focus on the "low-hanging fruit", dealing with clear cases where compensation is owed. "We must not allow the theoretically perfect to render impossible the achievable good," Sentelle wrote.

These comments were directed toward a Native American female employee of a health clinic in Oklahoma. Shortly after she filed an EEOC complaint for discrimination, she was fired. While such abusive language may seem as a matter of common sense to be more than sufficient to create a discriminatory environment in the workplace, the US Court of Appeals for the 10th Circuit has held that as a matter of law it does not rise to the level of legal discrimination.

In Nettle v. Central Okla. Am. Indian Health Council Inc., the 10th Circuit reviewed a lower court’s dismissal of the woman’s discrimination claims. The lower held that (1) under the “totality of the circumstances,” no reasonable juror could find that the comments created a hostile work environment,(2) the woman did not make a prima facie showing that she had been treated adversely because of her skin color, and (3) there was no causal connection between her filing the EEOC charge and the Clinic's decision to fire her, hence no retaliatory termination.

On appeal, the 10th Circuit panel noted that Title VII of the Civil Rights Act proscribes employment practices that “permeate the workplace with ‘discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment.’ However, they affirmed the lower court’s decision to dismiss the claim, finding that the comments directed at the woman did not rise to the level of actual discrimination.

“We can easily understand that it could be annoying and irritating for a person of one racial mix to be mistaken for another, but there is no precedent for regarding a mistaken racial identifier—not employing any epithetical terminology—as opprobrious or abusive.” The Court also stated that none of the comments “strike us as sufficiently severe or opprobrious (considered objectively) that a reasonable jury would regard them “alter[ing] the conditions of the victim's employment and creat[ing] an abusive working environment.”

First-time offenders between the ages of 18 and the mid-20s who face misdemeanor charges in Tulalip Tribal Court can elect to appear before the Elder Court instead. There, the young offenders are required to fulfill a series of requirements that often more resemble tribal traditions than standard punishments. A young adult in Elder Court could be asked to create a family tree by interviewing older family members, or to attend a traditional event in the tribal longhouse. It’s not unusual for young adults who create family trees to discover that they are related in some way to Court members. Such realizations foster the understanding that an entire community is relying on them to be a productive member of society.

Each youth is required to meet regularly with the Elder Court as he or she moves through the process of turning away from crime. Court statistics reflect that fewer than 10 percent of the youth who proceed through Elder Court are returned for subsequent offenses.

As reported in Indian Country Today, the laws of the Navajo Nation are now accessible worldwide through the Internet on Westlaw. This accessibility was made possible through the coordinated efforts of the Navajo Nation’s Office of Legislative Counsel and West Publishing, which publishes all 26 titles of the Navajo Nation Code Annotated in a four volume book format, a CD ROM, and through online subscription to www.westlaw.com. The Navajo Nation Code Annotated incorporates all enacted legislation as well as excerpts of all Navajo Nation Supreme Court opinions which may have an impact on the interpretation of provisions of the codes.

A significant challenge for Tribal Law practitioners is the relative lack of electronically-available Tribal Codes and Tribal Court decisions. The Navajo effort serves as a model for providing universal accessibility to Tribal legal authority, and will hopefully lead to increased availability of the Codes and Tribal Court opinions in other jurisdictions.

Duwamish Tribal leaders and Rep. Jim McDermott will testify before the U.S. House Committee on Natural Resources this week, seeking federal recognition for the Tribe. The Duwamish Tribe’s ancestral homeland is located in present-day Seattle, which takes its name from the Tribe’s legendary Chief Si’ahl.

The Duwamish were signatories to the Treaty of Point Elliott in 1855, which guaranteed fishing rights and reservations for all Tribes who were party to the agreement. However, in 1916 the construction of the ship canal connecting Lake Washington to Puget Sound ultimately forced the Duwamish to leave their traditional territory and move to places like the Muckleshoot and Tulalip reservations.

In the closing hours of President Bill Clinton's administration the Duwamish were granted federal recognition but that decision was reversed by President George Bush's administration. A Bush appointee decided that that the Tribal members no longer exist as a distinct political and social unit, primarily because of what administration officials characterized as a lapse in Tribal government and social cohesion from 1916 to 1925. The Duwamish's approximately 600 members have since sued the U.S. Department of Interior to reverse its ruling and restore federal recognition.

The proposed federal Employee Free Choice Act (EFCA) introduced in the House of Representatives earlier this year is designed to aid the organization efforts of labor unions. Among other provisions, the current version of EFCA would eliminate secret-ballot elections for union certification and allow a union to be established through a “card check” system similar to gathering signatures for a petition. In conjunction with the 2007 decision in San Manuel Indian Bingo & Casino v. NLRB that applied the National Labor Relations Act (the NLRA) to Tribal casinos, the likelihood of union organization activity in Tribal jurisdictions would increase significantly. In response, Senator Daniel Inouye (D-Hawaii) has stated his intention to propose an amendment to EFCA that would expressly exclude any federally recognized Tribe or Tribal entity from coverage by the NLRA.

The NLRA prohibits employers from interfering with employees' efforts to organize, and EFCA would stiffen enforcement, requiring employers to pay fines and increased back pay for violating employee rights. EFCA’s most controversial provision would allow a union to be recognized as the sole collective bargaining unit for employees based strictly on a majority of employees have signing forms in favor of the union, rather than through a secret ballot election. EFCA additionally provides for mandatory binding arbitration if the employer and the union cannot reach a collective bargaining agreement. The arbitrator could — without employer consent — set terms and conditions of employment that would be binding on the employer for two years.

As the federal legislation continues to develop, it behooves Tribes to create their own labor and employment policies and procedures to govern conduct within their jurisdiction. Federal intervention in Tribal legal affairs is often based on a Tribe’s lack of specific regulations addressing topics (e.g. labor and employment); conversely, federal agencies are often less likely to assert authority over Tribal affairs when the Tribe at issue has its own well-defined legal policies that render federal involvement unnecessary. For additional information on the creation of Tribal labor and employment policies, contact attorneys Katheryn Bradley or Julie Kebler.

As is frequently the case with issues dealing with Tribal law, the question of what court has jurisdiction to probate a decedent’s assets -- and which law that court will apply -- is much more complicated for an Native American decedent than it is for non-Native citizens. Three different sovereigns may have jurisdiction and control over the property – a Tribe, a state, or the federal government. Which court will have jurisdiction, and which law will apply, depends on the nature of the property (personal, real, or trust), where the decedent lived and was domiciled, and where the property was located at the time of death. Trust property is handled exclusively by federal government under the American Indian Probate Reform Act (AIPRA), while a Native decedent’s personal and real property is distributed under either Tribal or state law. Duncan Connelly's article provides an overview of how AIPRA governs the probate process for trust or restricted land, and describes the established, albeit complicated, system of probate for an Native American decedent’s non-trust land personal and real property. The issues discussed warrant careful consideration as Tribes and their members work to implement personal and collective priorities regarding the protection of cultural resources and Tribal assets.

The Court first reviewed the statutory construction of CERCLA and the definitions of its applicability:

“42 U.S.C. Section 9607 imposes liability upon certain “persons” (i.e, owner/operator, arranger, transporter) for costs incurred in responding to a release of hazardous substances. “Person” is defined in Section 9601(21) as “an individual, firm, corporation, association, partnership, consortium, joint venture, commercial entity, United States Government, State, municipality, commission, political subdivision of a State, or any interstate body.” “Indian tribe” is not expressly included in this list and indeed, is defined separately at Section 9601(36)…CERCLA’s definition of “person” is plain. It does not include “Indian tribes.”

The Court then reviewed the legislative history of CERCLA with an eye to Congress’ intent:

“Congress has had more than an adequate opportunity to address any oversight regarding liability of Indian tribes under CERCLA. If Congress intended to make Indian tribes liable under CERCLA, one has to ask why it did not specifically include “Indian tribes” among the entities covered by the term “person” in Section 9601(21), nor specifically define “municipality,” “association,” or “consortium” to include “Indian tribes.” It seems extremely implausible that Congress would simply leave it to chance that some court would conclude an Indian tribe qualifies as one of those entities subject to CERCLA liability…the plain language of CERCLA reveals that Indian tribes are not subject to liability under that statute.”

The IRS has just released Notice 2009-51 soliciting applications for and providing interim guidance on the $2 billion of Tribal Economic Development Bonds authorized in the American Recovery and Reinvestment Tax Act, and providing an application form for Tribes to use.

Tribal Economic Development Bonds can be used to finance on a tax-exempt basis anything that a State or local government could finance on a tax-exempt basis, whether with tax-exempt governmental bonds or tax-exempt private activity bonds, except for any portion of a building in which gaming is conducted or any property actually used for gaming and facilities not located on the reservation.

The IRS notice appears to establish that no portion of a building may be financed with these bonds if gaming is conducted in any other portion of the same building, even if those portions are physically discrete from each other. The notice provides a safe harbor under which a structure will be treated as a separate building if it has an independent foundation, independent outer walls and an independent roof. Connections such as doorways, covered walkways or other enclosed common area connections between two adjacent independent walls of separate buildings may be disregarded as long as such connections do not affect the structural independence of either wall.

Other notable points from the IRS guidance include:

The volume cap for these bonds will be allocated in two $1 billion tranches.

Applications for an allocation from the first tranche must be filed with the IRS by August 15, 2009, and the bonds must be issued by December 31, 2009.

Applications for an allocation from the second tranche must be filed with the IRS after August 15, 2009 and before January 1, 2010, and the bonds must be issued on or before December 31, 2010.

No single Tribal government may be awarded more than $30 million from the first tranche, but there is authorization for projects to be financed jointly. If the total of applications for the first tranche exceed $1 billion each award will be reduced pro rata so the total does not exceed $1 billion.

A similar limit is expected to apply to applications for the second tranche, but the IRS reserves the right to change or eliminate the limit.

Unused volume cap for these bonds would carry over to future years under a process to be determined at some future date.

For further information on accessing funding and developing projects through Tribal Economic Development Bonds, contact William Tonkin.

In nearly every jurisdiction throughout the United States, local governments derive a significant portion of their operating revenue from property taxes. The money land owners pay in property taxes goes to fund basic infrastructure such as roads and schools and services such as police and fire protection.

There is however one jurisdiction within which the local government cannot collect property taxes: Tribal lands held in federal trust.

Tribal governments cannot impose property taxes on reservation land that has been taken into trust by the federal government, which is typically most if not all of the land owned by Tribal members within the bounds of a reservation. Tribes are thus deprived of the benefit of countless millions of dollars in revenue that would normally be available to any other municipality. With poverty and sub-standard facilities still endemic on reservations throughout America, there is a sad irony in the fact that the place where property taxes could do the most good are the only places they cannot be collected and put back into the community.

The denial of taxing authority to Tribes also has another negative impact on Native Communities, this time in the context of the national consciousness. In order to make up for unavailable property tax revenue, many Tribes utilize alternative income sources such as casino gaming and discounted tobacco products to finance basic services within their reservations. Since in most states these offerings are only available within the sovereign territory of a Tribe, many Americans hold an ill-informed view that Native Americans enjoy "special privileges", and that other benefits and services to Tribes should therefore be curtailed. The lack of understanding of why these alternative revenue sources are necessary could perhaps be overcome by touring the decrepit infrastructure with which many Tribal Communities continue to be saddled, but such ventures by non-Natives are far from routine.

There's no insurmountable obstacle to allowing Tribes to tax land within their jurisdictions. The federal government could enter into taxing agreements with Tribes that would allow for collection of some form of property tax, which Tribes could help structure so as to increase revenue without placing an undue financial burden on Tribal members. Numerous models for such agreements already exist, in the form of retail sales tax compacts between state and Tribal governments for business activities occurring on reservations.

Health and Human Services Secretary Kathleen Sebelius says she will launch a new multiyear effort to improve health care for Native Americans, calling previous federal programs a "historic failure." Recruitment of health care providers for reservations and preventive care for Tribal members are top priorities. "(We need to) begin to lay the groundwork with Congress right now to say here's where we need to be," Sebelius said. "I think often the Tribal issues just fade away."

Dating back to a treaty signed in 1787, the federal government assumed an obligation to provide Native Americans with health care on reservations. Yet the chronically-underfunded Indian Health Service only has about half of the money it needs, often leaving Tribes in remote areas with severely substandard care.

President Barack Obama campaigned notably in Tribal communities and promised better health care for Native Americans. The 2010 federal budget includes an increase of $454 million, or about 13 percent, for IHS funding and the stimulus bill signed earlier this year provided for construction and improvements to health clinics on reservations.

Nevertheless, Sebelius says the funding increase still falls well short of the IHS’ actual needs. "One of my challenges to the new head of the Indian Health Service is that we need a multiyear strategy, we need an end goal," she said. "The most severe disparity between quality care and what goes on with health outcomes is in the Native American population."

A federal court has handed the Washington Redskins a legal victory in a 17-year fight with Native American plaintiffs who contend the football team's mascot and logo are racially offensive. The decision issued by the U.S. Court of Appeals in Washington doesn't address the question of racism, but rests instead on the legal theory of laches – the plaintiffs waited too long to commence their lawsuit to ban the trademark.

The team first received federal trademarks on the name “Redskins” in 1967. The Native American plaintiffs were initially successful in attacking the brand -- the U.S. Patent and Trademark Office panel canceled the trademarks in 1999. U.S. District Judge Colleen Kollar-Kotelly overturned that decision in 2003 in part because the suit was filed decades after the first Redskins trademark was issued. The U.S. Court of Appeals then remanded the case back to Kollar-Kotelly, noting that the youngest of the plaintiffs was only 1-year-old in 1967 and therefore could not have taken legal action at the time. Kollar-Kotelly’s new ruling rejected that argument, finding that the youngest plaintiff turned 18 in 1984 and therefore waited almost eight years beyond the age of majority to join the lawsuit. The ruling does not address whether the “Redskins” name is offensive or racist, and the holding states that it is not commenting on "the appropriateness of Native American imagery for team names."

The team’s attorney Bob Raskopf says millions have been spent on the "Redskins" brand and the team would have suffered great economic loss if they lost the trademark registrations. "It's a great day for the Redskins and their fans and their owner Dan Snyder," he said. However, a new group of Native American plaintiffs ranging in age from 18 to 24 have filed a nearly identical case. "We're hopeful that case will lead us ultimately to a ruling on the merits," said Philip Mause, attorney for the plaintiffs. "We're very confident about our position on the merits. We think this term is disparaging of Native Americans."

Inmates in Washington state's prisons can attend Catholic Mass, take Protestant communion or celebrate Muslim Eid, but Native Americans often struggle to find ways to practice their beliefs while incarcerated. For Native religions based in nature, bars and razor wire can be insurmountable hurdles.

A group of young adults through the Boy Scout's Venturing program set out early this month to change that. With direction from a Native American chaplain for the state prisons, the group hiked up a logging road near Gold Bar to collect slender alder saplings, said Ray Sayah, leader of the Venturing crew. The saplings will be used to build sweat lodges in prisons throughout Washington state. The group collected 160 saplings, being careful to avoid killing any other plant in respect for Tribal culture. The sweat lodges will be built on prison grounds, and they will be just like those found on Tribal reservations in north Snohomish County and elsewhere.

"This is contributing to the construction of more than 20 sweat lodges," Sayah said. "We're trying to get one for each prison facility where they're permitted."

Data recently released from National Centers for Disease Control shows homicide as the 9th leading cause of death for Native American women from ages 1 to 65. For Native American women in certain age groups, that ranking is higher still.

Jacqueline Agtuca of the Tribal non–profit group called Clan Star studies issues of safety and health for Native American women. She says few murders, rapes, or assaults occurring in Tribal communities are ultimately prosecuted to conviction. Across the country, less than one-third of all criminal cases referred to federal prosecutors by the BIA or FBI result in any prosecution at all. "Until we have that response on a national level from the federal government who handles these cases, we are not going to see a decline."

On Friday, May 8, 2009, the Washington State Bar Association’s Indian Law Section will hold its 21st Annual Conference and continuing legal education seminar in Seattle. Co-hosted by the law firm of Foster Pepper PLLC, the day-long program will cover cutting-edge legal issues affecting Native American communities, including:

Federal Tribal trust funds mismanagement

Revisiting the issue of Native American civil rights and Tribal sovereignty

Examining the Duwamish Tribe and other federal recognition cases

Native American policy under the Obama administration

Juvenile justice in Native communities

Tax planning for Tribal construction and economic development projects

The panel of presenters features numerous acclaimed experts on Tribal issues, including:

The program also includes a traditional dance performance and cultural competency presentation by “One Crazy Raven” Gene Tagaban. You can follow the program during the day via this site's Twitter updates @nativelegal.

In a legal first, Tribal members have been victorious in Federal court challenging a Tribal banishment action.

On April 30, 2009, the U.S. District Court for the Western District of Washington granted the Petition for a Writ of Habeas Corpus filed by nine Snoqualmie Tribe members challenging a banishment imposed by the government of the Snoqualmie Tribe in May last year. A copy of the Findings and Conclusions may be read here. The Court held that the Tribe's government violated the Petitioners' due process rights under the Indian Civil Rights Act and vacated the full banishment. As a result, the Petitioners' membership in the Tribe, as well as their benefits, are restored. The Court also imposed a time restriction on a pre-existing social banishment that prevented the Petitioners from coming onto Tribal land and attending Tribal events. The Court also reduced the open-ended social banishment to 90 days.

The decision comes after the first trial held in Federal court under the 1968 Indian Civil Rights Act seeking relief from a tribal banishment action. This is the first Federal court decision to overturn a banishment after trial upon a finding of a denial of due process. As previously discussed on this site, banishment is increasingly being employed by various Tribes to deal with disciplinary and other control issues. The Snoqualmie decision could have profound effects on the way Tribal governments deal with political and criminal issues involving their members, with banishment decisions now being scrutinized in federal courts.

The Confederated Tribes and Bands of the Yakama Nation have passed a resolution requiring any sex offender who lives or works on the Yakama Indian Reservation to register with the Nation’s law enforcement agencies. The Yakama Nation is the first government in the Yakima Valley of Washington State to require sex offenders to not only register if they live on the reservation, but also if they live elsewhere but are employed on the reservation.

The registration requirement applies to all persons whether Native or non-Native, and carries penalties of up to one year in jail and a $5,000 fine for non-compliance.

Attorneys from Navajo Public Defender, Foster Pepper, and UW Native American Law Center

Attorneys of the Navajo Nation’s Office of the Public Defender are participating in advanced litigation skills training seminars this week in Window Rock, Arizona, sharpening their skills in criminal case investigation and pre-trial evidentiary practice.

The training program is conducted jointly by the University of Washington’s Native American Law Center and Foster Pepper PLLC’s Native American Legal Services Group, and provides in-depth instruction and practical exercises in strategic case planning, conducting discovery, motions practice, and the role of Navajo Fundamental Law in the contemporary judicial system. The program culminates at the Supreme Court of the Navajo Nation, where the Public Defenders will observe and analyze oral arguments before the Nation’s highest court on issues pertaining to defense of those accused of Navajo Criminal Code violations.

The John D. and Catherine T. MacArthur Foundation has just announced a $225,000 grant award to the University of Washington’s Native American Law Center, which will fund the Center’s ground-breaking new program to help Tribal communities develop strategies to address the needs of Native American children in state and Tribal juvenile justice systems. The program and grant were conceived and will be managed by Professor Ron Whitener, a Director of the University’s Native American Law Center. Professor Whitener is Assistant Professor of Law and the Director of the Tribal Court Criminal Defense Clinic at the University, is Of Counsel to the law firm of Foster Pepper PLLC in Seattle, and serves as Chief Judge for the Confederated Tribes of the Chehalis.

The MacArthur Foundation is an international organization that supports creative people and effective institutions committed to building a more just, verdant, and peaceful world. In addition to selecting the MacArthur Fellows, the Foundation works to defend human rights, advance global conservation and security, make cities better places, and understand how technology is affecting children and society.

In its just-released opinion in Solis v.Matheson, the 9th Circuit Court of Appeals has held that the federal Fair Labor Standards Act (FLSA) applies to Tribal businesses, whether located on-Reservation or not, and that federal enforcement agencies can enter upon Tribal lands and search records to determine compliance.

The Solis case involves a claim for payment of overtime wages by an employee of a Native-owned retail operation. The Puyallup Tribe in Washington state has a store known as Baby Zack’s Smoke Shop located on trust land within its Reservation. Baby Zack’s sells tobacco products and sundries to both Tribal members and non-Natives, and regularly employs both Native and non-Native workers. An employee filed a claim for unpaid overtime wages against the owner of Baby Zack’s, and the Federal District Court entered judgment concluding that the FLSA applied to the shop, and that the failure to pay overtime wages violated the FLSA. The judgment enjoined the owners of Baby Zack's from violating the FLSA and ordered payment of $31,339.27 in overtime wages.

On appeal, the 9th Circuit not only affirmed the applicability of the FLSA to on-Reservation Tribal businesses, but went farther by specifically authorizing federal searches on Tribal lands as part of enforcement practices.

We conclude that the overtime requirements of the FLSA apply to the retail business at issue in this case. Because the FLSA applies to the retail business, we conclude that the Secretary had the authority to enter the Indian reservation to audit the books of the business, as she would regularly do with respect to any private business.

Accordingly, because the FLSA overtime provisions apply to the (shop), we conclude that the Secretary was authorized to make entry on to the reservation in order to locate records via her regular procedure in her effort to enforce the statute in question.

Unless the decision of the 9th Circuit is overturned by the US Supreme Court, Tribes and Native Corporations must now comply with the requirements of the FLSA, and assume they are subject to intrusive inspections by federal regulators. It therefore behooves Native entities to craft and adopt employment and labor policies that will serve their business interests while avoiding conflict with federal standards.

Stating that “This case is at an end”, Supreme Court Justice Antonin Scalia closed the books on the multi-decade effort by the Navajo Nation to obtain a greater share of mineral royalties from the coal that is mined from their lands by non-Native corporations. The Nation’s claim was for back-royalties in excess of $600 million. The result: No acknowledgement of government wrongdoing, no renegotiation of the mineral lease terms, no more money for the Nation.

The Court’s holding in United States v. Navajo Nation dismissed the Nation’s assertion of a breach of fiduciary duty by the Secretary of the Interior, arising from his failure promptly to approve a royalty rate increase under a coal lease the Tribe executed in 1964. The lease allowed the corporation currently known as the Peabody Coal Company to engage in coal mining on a tract of the Navajo reservation in exchange for royalty payments to the Tribe. After the initial 20-year lease elapsed in 1984, the Nation requested that the Secretary exercise his power to increase the royalty rate, and the Director of the Bureau of Indian Affairs for the Navajo Area issued an opinion letter imposing a new rate of 20 percent of gross proceeds. However, the actual new royalty rate was set significantly lower, under circumstances the Nation found highly suspicious. In particular, the Nation alleged that the Secretary, following improper ex parte contacts with Peabody, had delayed action on Peabody’s administrative appeal in order to pressure the economically desperate Nation to return to the bargaining table. This, the complaint charged, was in violation of the United States’ fiduciary duty to act in the Tribal members’ best interests.

Although it did little to dispute the facts alleged in the Complaint, the Supreme Court rejected the Nation’s argument and claim. Scalia’s opinion holds that “The Government’s “comprehensive control” over Indian coal, alone, does not create enforceable fiduciary duties. “ The Court ruled that the Nation was required to identify an explicit statutory provision that created a particular trust obligation, rather than relying on the long-standing principles on which the trust relations between the federal government and Native communities has been based. “Because the Tribe cannot identify a specific, applicable, trust-creating statute or regulation that the Government violated, we do not reach the question whether the trust duty was money mandating. Thus, neither the Government’s “control” over coal nor common law trust principles matter.”

This case and its ultimate decision highlights the continuing tension between Tribes and the Department of Interior regarding the management – both environmental and financial – of natural resources in Native lands. Although certainly a disappointment for the Navajo Nation and other Tribes seeking to realize fair value for their mineral wealth, the Court’s opinion actually provides a roadmap for correcting the apparent inadequacy of federal fiduciary responsibilities to Tribes. Native communities and their representatives should initiate federal legislation that clarifies and explicitly enumerates the obligations of the federal government in handling Tribal resources, and provides meaningful and efficient remedies for a breach of trust that damages or materially undervalues Native resources.

The King County Court Appointed Special Advocate (CASA) program has announced the Seattle law firm of Foster Pepper PLLC as the 2009 recipient of the Judge David Soukup Pro Bono Recognition Award. W. Gregory Guedel, Chair of the firm’s Native American Legal Services Group, and Pro Bono Counsel Joanna Plichta Boisen will receive the award on behalf of the firm on April 25, 2009 in Seattle.

The award, named for the jurist who founded the nation’s first CASA program in Seattle in 1977, is presented annually to an organization demonstrating noteworthy commitment to CASA’s mission of providing free legal service for children up to 11 years old who have allegedly been abused and/or neglected. The need for CASA advocacy in Native Communities is especially great, as Native American children are disproportionately involved in legal issues involving foster care and custody. Foster Pepper is being recognized for its work in creating a new legal deskbook for practitioners serving Native American children under the federal Indian Child Welfare Act (ICWA), and for its landmark ICWA seminar that provided training to a national group of CASA volunteers serving Native Communities. Video and audio of the seminar can be accessed here or as podcasts through iTunes.

We are still reeling from the fabulous day we spent with you and our guests at the Indian Child Welfare Act seminar. So much work and effort on your part made the event a resounding success and helped the CASA program along the path to establishing our own Native American unit.

In order to comply with the Western Hemisphere Travel Initiative and the Real ID Act, travelers seeking entry into Canada from the United States must present either a current passport or a security-enhanced ID card by June 1, 2009. The federal government has provided millions of dollars to state governments to develop the chip-embedded ID cards and supporting database systems – but no money has been provided to Tribes to equip their members with the necessary cards and support.

Many Tribal members prefer to utilize ID cards issued by their Tribal governments when traveling internationally, to reflect the sovereignty of their Tribes. Despite the 1794 Jay Treaty that guarantees indigenous peoples the right to move freely between Canada and the U.S., if Tribal governments can't issue security-enhanced ID cards by June 1, Tribal members attempting to enter Canada with standard IDs will likely be turned back at the border. Tulalip Tribal leaders have agreed to develop ID cards for several Northwest Tribes, along with a database that would link to computers at the border, but it appears unlikely the systems will be on-line in time. "We're racing the clock right now," said Theresa Sheldon, a Tulalip policy analyst who has worked on the border security issue for several years. "The only way we would be able to make it by the deadline is if they gave us an extension."

The National Congress of American Indians has filed a request with the federal government for a $20 million grant to help Tribes create their own enhanced IDs. However, even if that request is approved, the money will likely not become available to Tribes until 2010.

Fed up with crimes on Tribal lands that go unpunished in state or federal courts, the Blackfeet Nation has resolved to challenge the legal authority that limits Tribal Court jurisdiction and punishments. Blackfeet Tribal Resolution No. 98-2009 calls on Montana’s Congressional Delegation to sponsor a bill to allow Tribes to remedy Oliphant v. Suquamish, 435 U.S. 191 (1978).

As previous articles on this site have discussed, the Oliphant decision and the Indian Civil Rights Act together limit Tribal Court jurisdiction over "non-Indians" and allow Tribal judges to impose only a maximum one-year prison sentence for any crime, no matter how violent or damaging to the Tribe. Currently, the sole authority to prosecute major felony crime lies with the federal government, yet from 1997 to 2006 federal prosecutors rejected nearly two-thirds of the reservation cases referred by FBI and BIA investigators.

This year Senator Byron Dorgan, D-N.D., chairman of the Senate Committee on Indian Affairs, introduced a draft for the Tribal Law and Order Act of 2009. If enacted, the law would make incremental steps to an Oliphant remedy in the following areas: 1) Allowing Tribal Courts to impose up to 3 years in prison or a fine of up to $15,000 for major crimes; 2) Increasing funding for Tribal Courts and law enforcement departments; and 3) Creating a new Law and Order Commission to study issues of jurisdiction, investigation, and prosecution of reservation crimes and the impact on residents of Tribal land. The Commission would have two years from the enactment of the legislation to issue a report to Congress.

Nineteen Tribes have teamed up to bring federal litigation against the State of Washington to speed up the pace of dealing with more than 1,800 fish barriers associated with state highways, which block more than 3,000 miles of potential stream habitat for salmon. Washington’s legislature has funded culvert replacement since 1991, but the current pace of construction could take up to 100 years to fix the problems.

The Tribal consortium previously prevailed in litigating a preliminary issue regarding the state’s duty to protect and enhance salmon runs. In 2007, U.S. District Judge Ricardo Martinez ruled that treaties signed in the 1850s impose a duty on the state to “refrain from building or operating culverts under state-maintained roads that hinder fish passage and thereby diminish the number of fish that would otherwise be available for tribal harvest.” Tribes and the state have worked to craft a acceptable settlement since then, but lack of progress and funding prompted a new round of claims.

Dan O’Neal, chairman of the Washington State Transportation Commission, expressed little hope for a legislative solution in the near term.

“The Legislature right now is dealing with all kinds of issues. From a transportation standpoint, revenues are down. Gas taxes aren’t producing as much revenues because people are driving less or using more efficient cars or whatever. I don’t think this thing, frankly, has percolated to the top of legislators’ lists, I don’t think they will change anything unless the court directs it.”

Health care reform is touted as a top priority by the Obama administration, and one need only look to Tribal reservations to see the urgency. Treaty obligations and acts of Congress require the United States to provide health care for Native Americans, but in 2004 a Civil Rights Commission report found the government spent more per capita on health care for federal prisoners than for Native Americans.

In addition to the lack of direct funding, Tribal members suffer from a lack of access to rural doctors and clinics. As reported by The Seattle Times, two years ago Michael Buckingham of the Makah Tribe lost two fingers in a fishing accident in the waters off his reservation, in the isolated coastal town of Neah Bay, Washington. Buckingham needed physical therapy for a third finger that was severely injured, but couldn't afford the gas to make 70-mile trips to the closest therapy clinic in Port Angeles. "If I can't get it fixed, I'm just ready to have it cut off, because it's too painful," Buckingham said.

The lack of federal funding for health care has resulted in many Native Americans being forced to live with chronic pain, forgo prenatal care, and suffer from untreated depression. The Indian Health Service presently operates only 31 hospitals nationwide, less than one per state. President Obama has proposed a $4 billion budget for the IHS, a $700 million increase. Yet with federal spending at an all time high and Congress focused on the country’s financial condition, it is uncertain how quickly new funds to improve Native health care will emerge.

These comments from Linda Sweet-Baxter, Carolyn Lubenau, and Anita Christansen arose from a recent court hearing on the banishment orders issued by the Snoqualmie Tribe, affecting nine (now “former”) Tribal members. Along with the substantive and cultural issues involved in the banishments, another point of interest was the venue for the hearing – the Federal Court for the Western District of Washington.

The banished members brought legal action in federal court under the Indian Civil Rights Act, alleging the leadership of the Snoqualmie Tribe denied them their right of due process, including adequate notice and an opportunity to speak on their own behalf. The challenges facing the Court went beyond the legal principles at issue, as the non-Native judge, court reporter, and lawyers struggled throughout the hearing to pronounce words in the Tribe’s Lushootseed language.

While federal courts are well-equipped to deal with issues of Constitutional, federal, and even state law, their ability to deal effectively with the political, cultural, and familial complexities of Tribal banishment cases is a significant concern. On a more fundamental level, there is a question of sovereignty involved in reviewing a Tribe’s decision regarding who is and is not one of its members. With the increasing use by Tribes of banishment as a method of criminal (and sometimes political) punishment, legal scholars and advocates must analyze and establish the appropriate boundaries between federal protection under ICRA and a Tribe’s inherent jurisdiction over its membership.

The exterior boundaries of Tribal reservations are usually fairly well defined, and provide a delineation for when one is leaving state land and entering “Indian Country”. However, the ownership and control of land within the bounds of the reservation is often far less clear. Through previous federal policies such as allotment and termination, much Native land was alienated from Tribal ownership. As a result, ownership maps of present-day reservations often resemble a “checkerboard”, with plots of non-Native-owned land interspersed with Tribal trust lands.

For many Tribes, reacquiring the land within reservation boundaries is both an economic and cultural imperative, and Tribal leaders seek creative legal and business methods of eliminating the checkerboard. The Tulalip Tribes in Washington are presently considering a unique economic tool in this regard: imposing a tax on sales of land by Tribal members to non-Natives. The Tulalip Grassroots Committee, an organization of Tribal members, has proposed a 17 percent tax on the land value on real estate transactions to discourage Tribal members from selling land to non-Native buyers. "We believe the reservation is sacred and we wanted to make sure that not as much land goes out of trust status," states Tulalip Chairman Mel Sheldon.

With real estate prices plummeting nationwide in the tumult of the current economic crisis, Tribes with cash are positioned to more quickly eliminate checkerboard spaces within reservations. While a tax such as that proposed by Tulalip may help reduce alienation of Tribal lands, there is also risk of alienating the surrounding business community by raising a new barrier to transactions on reservations. Balancing the interests of internal cohesiveness and positive external relations will become increasingly important as Tribes navigate through the current nationwide economic crisis.

Assailing what he calls “special privileges that give (Native Americans) unique advantages” and declaring “It’s time for our Legislature to restore sanity to Oklahoma’s dealings with the Tribes”, Oklahoma state Representative David Dank has introduced three bills before the state Congress: 1) a constitutional amendment to give private businesses the same right to make corporate campaign contributions as Tribes; 2) a second amendment requiring compacts between Tribes and state government be ratified by the state Legislature; and 3) a bill giving private businesses located close to competing Tribal stores the same sales tax exemptions as the Native-owned businesses. Dank outlines his plan and purpose in an article in this week’s Oklahoman newspaper.

Dank’s reasoning is based on his view that:

Tribes collect no sales taxes on items sold from their grocery and convenience stores, or other Tribal businesses. They collect about half of normal tobacco taxes from Indian smoke shop sales. Tribal businesses pay no property taxes, the state receives little or nothing from Tribal auto tags, and Tribes, unlike private businesses, are free to make millions in corporate campaign contributions.

Meanwhile, the Tribes reap millions from a state-issued monopoly on casino gambling in Oklahoma because of a 15-year compact that cannot be altered.

These are tax exemptions and breaks that siphon tens of millions of dollars each year from local school districts, city and county governments and our state treasury. Non-Tribal citizens and businesses are being taxed to make up those losses. In some cases, non-Tribal businesses are being driven into bankruptcy by the unfair competition made possible by these special privileges.

Dank’s article neglects to mention some other ways in which Native American Tribes are “special”. Unlike every other municipality in the country, and despite being recognized by the US government as sovereign, Tribal governments are not allowed to levy property taxes on the Tribe’s own land. This state of affairs deprives Tribes of untold millions in revenues each year that other municipalities use for roads, police, and other civic services. For Tribes fortunate enough to be located near population centers or interstate highways, gaming revenue is but a partial substitute for the lack of taxing authority, as illustrated by the endemic poverty and substandard infrastructure on reservations.

The private sector of Oklahoma’s economy also reflects a “special” place for Native Americans. As he laments the Tribes’ “special financial privileges” that “cost state and local governments millions and damages competing private businesses”, Dank omits the fact that Native American and Alaska Native householders in Oklahoma had a median income 18.1 percent less than the median level for all households, and an overall decline in median income of 24.2 percent since the year 2000 – the biggest drop of any demographic group in the state. Meanwhile, the Caucasian demographic in Oklahoma has realized a 42.8 percent increase in household income level since the year 2005.

Articles on this site have previously commented on the troubling fact that race continues to be an actively-considered element in both substantive and jurisdictional issues of law affecting Native Americans. The recent 9th Circuit case of United States v. Cruz demonstrates that the phenomenon of “race laws” continues to haunt the national landscape.

The Cruz case involves the analysis of whether a criminal defendant could be tried by a federal court under the laws of the United States. The federal government contended that Mr. Cruz is an “Indian” and committed an assault on Tribal land, thereby subjecting him to federal jurisdiction under 18 U.S.C. § 113(a)(6). Mr. Cruz appealed, alleging that he is not an “Indian” and therefore not subject to federal jurisdiction under the statute. The 9th Circuit Court of Appeal offered the following preface to its analysis:

“At first glance, there appears to be something odd about a court of law in a diverse nation such as ours deciding whether a specific individual is or is not “an Indian.” Yet, given the long and complex relationship between the government of the United States and the sovereign tribal nations within its borders, the criminal jurisdiction of the federal government often turns on precisely this question — whether a particular individual “counts” as an Indian — and it is this question that we address once again today.”

The Court then plunged into an analysis of Mr. Cruz’s racial heritage, determining that

“His father is Hispanic and his mother is 29/64 Blackfeet Indian and 32/64 Blood Indian. The Blackfeet are a federally recognized tribe based in northern Montana; the Blood Indians are a Canadian tribe. Given his parents’ heritage, Cruz is 29/128 Blackfeet Indian and 32/128 Blood Indian.”

The Court ultimately found that the evidence in the case “does not demonstrate that Cruz is an Indian”, and remanded the matter back to the lower court with directions to acquit Mr. Cruz of the federal charges.

The Cruz case is merely the latest in a long series of cases where judges have attempted to determine who is and is not Native American through subjectiveracial analysis. Leaving aside the glaring issue of why race is a jurisdictional factor in the first place, courts have also failed to create any uniform standard for this tortured arithmetic. In Sully v. United States, 195 F. 113 (8th Cir.1912). 1/8 “Indian” blood was held sufficient to be Indian; in Vezina v. United States, 245 F. 411 (8th Cir.1917), women 1/4 to 3/8 Chippewa were held to be Indian; in Makah Indian Tribe v. Clallam County, 73 Wash.2d 677, 440 P.2d 442 (1968), 1/4 Makah blood sufficient to satisfy the “Indian blood requirement”, in Goforth v. State, 644 P.2d 114, 116 (Okla.Crim.App.1982), the requirement of Indian blood was satisfied by testimony that a person was slightly less than one-quarter Cherokee; and in St. Cloud v. United States, 702 F.Supp. 1456, 1460 (D.S.D.1988), 15/32 of Yankton Sioux blood was held sufficient to establish one as an “Indian”.

Conducting mathematical calculations on a human being’s racial ancestry for the purpose of deciding which laws apply to that person harkens back to the darkest days of American jurisprudence. For those who thought America had moved beyond Plessy v. Ferguson, when the Supreme Court decided that a person who was “7/8ths White” could be consigned to both a separate train car and a separate legal standard, it is clear that much work still remains to be done. It has become typical for courts to “punt” the obvious problems with race laws involving Native Americans by saying “it’s Congress’ responsibility, not the courts.” This justification for abdicating judicial responsibility is not only legally fallacious, it directly contradicts the clear legal precedent of cases such as Brown v. Board of Educationwhere legal policies based on race were declared inherently unconstitutional. Courts clearly have the legal authority to put an end to race-based laws, all they need is the courage.

A far better way for Tribal/federal jurisdiction questions to be analyzed is based on treaty status, with Tribal members being subject to either Tribal or federal jurisdiction based on agreements between their Tribe and the US government. These are the same principles used when citizens of Canada, Mexico, or other sovereigns are charged with crimes within the United States, and the procedures for determining jurisdiction are well established. Such a policy would properly acknowledge the sovereign status of Tribes, and eliminate the embarrassing and intellectually-unsupportable notion that a person’s race should determine their legal status in America.

In order to improve the quality of the healthcare that Native Americans receive, supporters are encouraging Congress to reauthorize IHCIA. The law has not been reauthorized since 1992 and ideally, any reauthorization legislation would put important decision-making powers in the hands of tribal leaders. Not just because these leaders understand the needs of their own people the best (which they do) but also because tribal nations are capable of managing their own health care systems.

According to the Aberdeen Area Tribal Chairman’s Health Board and the Standing Rock Sioux Tribe, IHCIA is a good framework for a Native American health care overhaul, but safeguards need to be in place to assure that tribal sovereignty is protected. Congressmen say they understand the sovereignty issue but still believe the government should establish general eligibility rules so there is a fair distribution of funds for tribes in all parts of the country.

The sooner a compromise is achieved and the sooner IHCIA is reauthorized, the better healthcare will be for those that need, and deserve it, the most.

Under the leadership of Professor Jay Kanassatega, a new Federal Indian Law Program has been created at Gonzaga University's law school. The program is designed to foster the development of both future attorneys and Native governmental leaders. For law students, the program will provide intensive instruction and practical experience in legal matters affecting Native communities. For Tribal governments, the program focuses on analysis and development of effective policies and their interaction with the national political system. The new Federal Indian Law Clinic, created in partnership with the Kalispel Tribe, offers Gonzaga students the opportunity to handle active legal matters in Tribal and state courts. The program’s next goal is the creation of the Institute for Development of Economic Policy for Indigenous People, which will focus on furthering economic self-reliance for Native people. The program will also be partnering with private law firms and other entities to take on federal cases of national import to Tribes and their members.

Professor Kanassatega comes to Gonzaga from private practice with the firm of Leonard, Street and Deinard in Minneapolis, where he focused on complex commercial litigation on behalf of Tribes and commercial entities. He previously served as the first Solicitor General of the Non-Removable Mille Lacs Band of Ojibwe, and was instrumental in helping the Band design, draft legislation, and implement the first separation-of-powers Indian government in Minnesota, including the Band's first court system. Prior to serving as Solicitor General, he served the Band as its Commissioner of Judicial Affairs, administered its Office of Management and Budget and served as its Economic Development Planner.

Associate Professor George Critchlow summed up the impetus behind the University’s new program. “Here at the law school we’ve been aware that we’re surrounded by tribes. It seemed to us this was a logical place to have an Indian law program and to put more emphasis on training students, both Native as well as non-Native, about the legal needs of the tribes and individual Natives to equip them with not only theoretical knowledge, but some of the skills and cultural information that would be useful in terms of being effective lawyers in representing Indian interests.”

When it comes to developing energy resources, many Tribes appear to be in the right place at the right time in 2009. Native communities blessed with wind, water, solar, or geologic resources are likely to see broad demand for their development, as the United States pushes for increased domestic energy production in general and of alternative/renewable sources in particular. The Department of Energy is actively seeking Tribal participation in energy development, the federal economic stimulus packages currently being debated in Congress contain funding and tax credits for energy projects on reservations, and private entities are realizing and pursuing the untapped energy sources present in many Native lands.

While the potential benefit to Tribes and the rest of the country from this energy drive appears vast, realizing that potential requires navigating various federal laws and regulations. Recent federal legislation such as the Indian Tribal Energy Development and Self-Determination Act, 25 U.S.C. §§ 3501–3506 (ITEDSA) sets forth rights and procedures for Tribes to pursue development of energy resources on their lands. Through ITEDSA, Tribes can negotiate energy resource agreements (“TERAs”) with the Department of the Interior, which provide authorization for Tribes to pursue energy development and transmission activities of all kinds. The newness of ITEDSA – the final regulations for which came into effect in 2008 – presents both a challenge and an opportunity for Tribes. Tribes that have a firm grasp of both the nature of their natural resources and the rules for negotiating TERAs can put themselves in the forefront of new energy production, thereby producing a vital resource for their members and new revenue from power sales to outside entities.

Understanding the federal laws and procedures for energy development is critical for Tribes not just to speed up the development process, but also to protect their legal and resource rights. Professor Judith Royster’s recent article regarding Tribal sovereignty and implementation of ITEDSA highlights previous instances when Tribes lost hundreds of millions of dollars in potential energy revenues, primarily due to having less information than their non-Tribal lessees regarding the true nature and extent of the Tribe’s natural resources. While the provisions of ITEDSA are designed to help prevent these egregious scenarios and create a “level playing field” for all parties, it is crucial for Tribes to be knowledgeable of their rights and opportunities -- and to be proactive in exercising them.

In 1968, Congress passed legislation codified as 25 U.S.C. §§ 1301-03, better known as the Indian Civil Rights Act (ICRA). Modeled after various portions of the amendments to the US Constitution that comprise the Bill of Rights, ICRA mandates protections for Tribal members such as freedom of speech, religion, press, and assembly. Subparagraph 7 of Section 1302 of ICRA provides that Tribal Courts shall not require excessive bail, impose excessive fines, impose cruel or unusual punishment, “and in no event impose for conviction of any one offense any penalty or punishment greater than imprisonment for a term of one year and a fine of $5,000, or both.”

Murder, rape, armed robbery – a Tribal Court can only impose a maximum one-year jail sentence for these or any other crimes committed on a reservation. If the Tribe views such punishment as inadequate for what in most jurisdictions would be capital crimes, its only option is to surrender jurisdiction to a state or federal court and allow the matter to be adjudicated in those systems.

Why?

In the 21st Century, what legal, intellectual, or philosophical justification exists for restricting the power of Tribal Courts to administer reasonable justice in their sovereign territory? Outside the realm of Tribal lands, courts in even the poorest and least-educated counties in America have the full sentencing panoply (including life sentences and capital punishment) available to deal with criminal acts occurring within their jurisdictions. Yet Tribes with hundreds of millions of dollars in revenue and sophisticated judicial systems are only permitted to issue sentences equivalent to that which non-Native courts impose on habitual traffic offenders.

The ability to make and enforce laws to protect the security and possessions of the members of a nation is a basic and fundamental element of sovereignty. When a capital crime is committed on Tribal lands, the Tribe suffers twice – first from the act itself, and then from the humiliation of having to hand over jurisdiction to a foreign court as the only means to pursue reasonable justice. At what point do federal/Tribal relations move beyond the Oliphant standard, wherein Tribes are given authority only to the point “consistent with the safety of the white population with which they may have come in contact”? In the era when the United States has finally proven itself “ready” to elect a person of color to the highest office in the land, is it also now ready to provide Tribal Courts the same basic legal authority as any other tribunal in the land?

The violent events associated with Wounded Knee, Pine Ridge, and the American Indian Movement (AIM) have proved to be among the most haunting chapters in modern Native American history. A recent court decision ensures this controversial book will remain open longer still, as U.S. District Judge Lawrence Piersol has delayed again the trial of two men charged in the slaying of a fellow AIM member 33 years ago.

John Graham and Richard Marshall were scheduled to stand trial Feb. 24 in Rapid City, South Dakota on charges they committed or aided and abetted the first-degree murder of Annie Mae Aquash on the Pine Ridge Indian Reservation in 1975. Ms. Aquash was among the militants who occupied the village of Wounded Knee in a 71-day standoff with federal authorities in 1973, that included exchanges of gunfire with agents who surrounded the village.

Arlo Looking Cloud, a Lakota who was living homeless in Denver, was convicted in 2004 for his role in the murder and sentenced to life in prison. He is now stated to be cooperating with the government in its case against Graham and Marshall, leading to their indictments. Witnesses at Looking Cloud's trial said he, Graham and Theda Clarke drove Ms. Aquash from Denver in late 1975 and that Graham shot her as she begged for her life. Prosecution witnesses accuse Marshall of providing the handgun and shells Graham used to killed Ms. Aquash, allegedly on orders from AIM leaders who suspected she was a government informant.

Graham has denied the killing but acknowledged being in the car from Denver. He was scheduled to stand trial in October, but the indictment was dismissed because it didn't show that either Graham or Ms. Aquash belonged to a federally recognized Tribe – a prerequisite for federal criminal jurisdiction. Graham descends from the Tsimshian Tribe in the Yukon and fought his extradition from Canada for more than four years. He was extradited in December 2007 after the Supreme Court of Canada refused to review his case. Ms. Aquash was a member of Mi'kmaq Tribe of Nova Scotia.

The trial is being delayed because Marshall's attorney filed a motion in January requesting at least another two months to prepare the case, stating that the trial likely will include testimony about AIM, Wounded Knee, the 1975 slaying of two FBI agents and other events. Judge Piersol’s ruling states: "The Court agrees with counsel for Marshall that this case presents complex legal and factual issues. The crime involves multiple defendants and allegedly occurred as part of a wide-ranging conspiracy arising out of the AIM movement of the 1970s." For those whose lives and families were shattered by the blood that was shed more than 30 years ago, the ghosts of Pine Ridge are about to rise once again.

The House and Senate are closing in on final draft legislation that would authorize the issuance by Tribes of up to $2 Billion worth of tax-exempt government bonds for economic development projects. The provisions are included in the “American Recovery and Reinvestment Tax Act of 2009” (H.R. 598) sponsored by Representative Charles Rangel of New York, a broad package of stimulus measures and tax credits designed to spur public infrastructure works and economic growth throughout the country.

Section 1532 of the Bill provides for federal support to “Indian Tribal governments” to issue up to $2 Billion in tax-exempt “Tribal economic development bonds”. The bonds will pay interest to investors who purchase them, but that interest will not be subject to federal taxes. The revenue generated by Tribes through the sale of these bonds may be used to provide capital for Tribal infrastructure projects and essential governmental functions. Tribes will not be permitted to apply such revenues to “any portion of a building in which class II or class III gaming is conducted”, nor for “any facility located outside the Indian reservation”.

The use of tax-exempt bonds by Tribal governments has increased significantly in recent years, as they provide both needed capital for Tribes and are attractive securities for tax-conscious investors. If signed by the President and fully implemented, H.R. 598 will provide significant assistance to Native communities in accessing capital markets for development projects in 2009.

The new Secretary of the Interior Ken Salazar recently told Tribal leaders in Washington D.C. that "First Americans will have their place at the table in the Obama administration." Less than 24 hours after President Obama took office, Tribes throughout America have put that policy to the test.

The Northwest Indian Fisheries Commission, which represents 20 Tribes in the Pacific Northwest including the Tulalip, Stillaguamish, and Sauk Suiattle, submitted a 16-page request to President Obama for additional funding and the adoption of a formal policy supporting Tribal management of natural resources. The Commission's request also seeks:

1. The issuance of an Executive Order reaffirming the government-to-government relationship between Tribes and the US government.

2. An additional $12 million per year in funding for the Commission and an extra $4.5 million per year for the Columbia River Inter-Tribal Fish Commission.

3. Restoration of expansive water rights to Tribes; and

4. Enhanced legal protections for Tribal resources such as salmon and shellfish.

The Commission’s requests were followed closely by a letter to the President from a group of US Senators representing Native constituencies throughout the country, seeking significant new funding for infrastructure and social/educational programs in Native communities. The Senators’ requests included:

• $1.2 billion for Tribal health facilities construction and support;

• $360 million for construction of Tribal justice infrastructure and support;

• $568 million for construction of road and bridge projects on reservations;

• $658 million for construction of Tribal schools and colleges;

• $50 million for housing construction, weatherization, and heating in Native Communities;

“The American Indians I have met across this country will be on my mind each day that I am in the White House. You deserve a president who is committed to being a full partner with you; to respecting you, honoring you and working with you every day. That is the commitment I will make to you as President of the United States.”

On the strength of such pledges, Obama received the endorsement of over 100 Tribal leaders throughout America. The coming weeks and months will reveal the true strength behind these promises, and provide a realistic view of the future for Native communities.

Recent articles on this site have detailed a trend among Tribes to expand their wild game hunting activities beyond the boundaries of reservations. Tribal hunters in various regions are exerting long-held treaty rights and are pursuing game on land owned by the government or private parties, but within the Tribe’s traditional hunting grounds. Not surprisingly, this has become a source of friction between Tribal hunters and their and non-Tribal counterparts, who are obliged to obey a different set of regulations and restrictions for their hunts. One instance of such friction is reflected in the following letter, sent from a non-Tribal hunter in Washington state:

The Tribes feel they should be allowed to hunt on the same land we do, using their laws. I have seen first hand what these rights amount to. I elk hunt in the Colockum Wildlife Area. My family settled in this area around 1880. My Uncle owns the land that remained, and he sees what goes up and down the road. What they saw a lot of this summer was truck loads of dead elk. Starting at the end of July, as soon as antlers mature and harden, local Tribal hunters are decimating the Colockum elk herd. On the last Friday of deer season in the area, my dad and brother saw Indian hunters with a very large 7 point bull in the back. Nothing was open at the time for elk, but the elk was dead nonetheless. Relatives have seen truck loads of spikes, the only size bull us non-Indians are allowed to shoot. Just when we thought the practice of not shooting big bulls was starting to pay off, the Tribe is decimating them. Hunting in this area has been going downhill for the past 3 years. Now we know why. Soon, elk in the Colockum will go the way of salmon, crab, and the Nooksack elk herd, which was nearly wiped out by Tribal hunters.

These are strong opinions – which are of course countered by equally strong opinions regarding Tribal rights and past injustices. As Tribes and their members seek to more fully exercise sovereign or treaty rights – particularly in an era of economic distress and diminishing natural resources - clashes of interests with non-Tribal entities are likely to become more frequent. Legal battles are divisive and expensive, and rarely produce a completely satisfactory outcome for any party. With regard to the expansion of hunting rights, it may well profit everyone concerned to instead seek both communication and compromise, and find ways to share the bounty of the land without battling in court.

Models do exist for such cooperation, interestingly enough in closely-related areas such as fishing. Numerous agreements exist between Tribal and federal/state governments for the management and utilization of fish and shellfish resources, with a resulting balance that allows for reasonable annual catches for Tribal and non-Tribal fishermen alike. Applying these concepts to hunting, Tribes may have an opportunity to partner with non-Tribal hunters in developing game ranges for mutual benefit. Tribes blessed with lands populated with game have both a natural and economic resource which, if properly managed, could bring significant revenue from hunters and tourists while preserving and enhancing the environment and wildlife population. There are no significant legal impediments to such partnerships – it is only a matter of will.

Since it was a special session, participants did not negotiate any language concerning the articles of the draft American Declaration. Instead, the session focused on evaluating the negotiation process and identifying specific measures that should be considered in future negotiations.

The Working Group reviewed the following major issues: 1) articles that were already approved, 2) articles that are close to agreement between indigenous and state representatives, and 3) articles containing complex issues where consensus has not been reached.

Specifically, the OAS Working Group will start negotiating articles at its next negotiation session scheduled for February 16-20, 2009 preceded by preparatory meetings of the Indigenous Caucus on February 14-15, 2009.

This is an important notice because tribal leaders are encouraged to attend and give their opinions and comments. For more information about attending, please contact Shayda Naficy at 202.547.2800.

Currently, a little over 560 Native American Tribes and Alaska Native organizations enjoy official federal recognition by the United States government. Hundreds of other Tribes across the country remain unrecognized, consigned to a political and legal purgatory and facing uncertain futures. The stakes could hardly be higher, as federal recognition brings national “legitimacy” as a Tribal entity, along with land, services, and money. Many Tribes have recognition applications that have been pending in the Bureau of Indian Affairs (BIA) for decades, yet the prospect of a final decision on their fate as a nation remains frustratingly unclear.

(1) The Tribe has been identified as an American Indian entity on a
substantially continuous basis since 1900.
(2) A predominant portion of the Tribe comprises a distinct
community and has existed as a community from historical times until
the present.
(3) The Tribe has maintained political influence or authority over its
members as an autonomous entity from historical times until the
present.
(4) The Tribe must provide a copy of its present governing documents and
membership criteria.
(5) The Tribe’s membership consists of individuals who descend from
a historical Indian tribe or tribes, which combined and functioned as a
single autonomous political entity.
(6) The membership of the Tribe is composed principally of
persons who are not members of any acknowledged North American
Indian Tribe.
(7) Neither the Tribe nor its members are the subject of congressional
legislation that has expressly terminated or forbidden recognition.

Once a Tribe has submitted evidence on these seven criteria, the technical staff within BIA’s Branch of Acknowledgement and Research reviews the submitted documentation and determines when the petition is ready for active consideration. Once the petition enters active consideration, the BAR staff reviews the documented petition and makes recommendations on a proposed finding either for or against recognition. Staff recommendations are subject to review by the Department’s Office of the Solicitor and senior officials within BIA, culminating with the approval of the Assistant Secretary-Indian Affairs.

After a proposed finding is approved by the Assistant Secretary, it is published in the Federal Register and a period of further comment, document submission and response is allowed. The BAR staff reviews comments, documentation, and responses and makes recommendations on a final determination that are subject to the same levels of review as a proposed finding. The process culminates in a final determination by the Assistant Secretary that, depending on the nature of further evidence submitted, may or may not be the same as the proposed finding.

Much of the publicized controversy over recognition decisions stems from events that occur after a Tribe is recognized, such as taking land into trust and off the local tax registers, or the immunity Tribes generally enjoy from local environmental and business regulations. Yet before the matter can even get to that point, the burden of satisfying the seven criteria can be overwhelming. In many instances, the historical policies and actions of the US government were specifically designed to eliminate the very socio-political authority and consistency the Tribe is now required to prove. Furthermore, the ability of the federal government to objectively analyze a Tribe’s petition must always be suspect, as international relations of this type are always colored by the self-interest of the participants.

Interestingly, some of the strongest opposition to the federal recognition of a given Tribe often comes from an unlikely source: other Tribes. A recent article about recognition disputes in the Pacific Northwest details such conflicts and highlights a primary factor: economics. After persevering through grinding poverty for decades, Tribes that are presently realizing positive economic development are understandably keen to protect their gains and future potential growth. Casino gaming is a typical engine that drives such growth, and numerous Tribes have effectively cornered-the-market on gaming in their localities by virtue of being “the only game in town”. The recognition of a new Tribe in the same locality, with its own ability to open a casino, becomes an immediate cause for concern for the existing Tribe’s revenue stream.

On the political front, a typical inter-Tribal argument against recognition is that the aspiring Tribe was at some point in history subsumed within a larger, currently-recognized Tribe. The legal basis for such arguments is often a treaty, usually signed in the 19th Century, wherein the federal government and certain Tribes purported to recognize each other and divide up territory (and the people living therein) for governance. Yet Tribes themselves have long fiercely criticized the legitimacy of many of these agreements, having usually been signed at the conclusion of military campaigns where the overriding priority was simply to end years of horrific human suffering. Parallels can be drawn to the annexation of the Baltic Republics into the Soviet Union, of Balkan states into the former Yugoslavia, and of Tibet into China. In each instance there were treaties or other legal paperwork “legitimizing” these acquisitions of smaller nations by larger states, yet it was obvious to all that these political maneuvers were the direct and exclusive product of the power of the gun.

In recent decades, many nationalist movements around the globe have succeeded in removing the yoke of totalitarianism, and have formed or re-established new nations that more properly reflect the ethnic and cultural heritage of the people. Such movements have been almost universally recognized as legitimate, and they have been celebrated by the Western democracies as the political expression of natural human rights. Are Native Americans any less entitled to pursue their goals of establishing self-identified nations?

If an American enters the sovereign territory of Canada or Mexico and commits murder, he or she can expect to face the full weight of that nation's laws and be punished through that nation's court system. But if a non-Native American enters the sovereign territory of a Tribe and murders a Tribal member, what punishment can that person expect to receive from the Tribe's Court and legal system?

None whatsoever.

Due to a unique set of federal legal decisions and policies, Tribal Courts have no jurisdiction to impose criminal penalties against "non-Indians", even when the crimes are committed on Tribal land or against Tribal members. Crimes committed by "non-Indians" on Tribal land are subject to state and/or federal jurisdiction and the perpetrators face punishment under state and/or federal law, but the affected Tribe has no legal standing to pursue justice for wrongs committed against its own people.

In no other area of American jurisprudence is race - in this case "Indian" or "non-Indian" - a factor in determining whether a court has jurisdiction over a criminal defendant. Decades ago the Civil Rights Movement helped sweep away race-based segregation and "Jim Crow" laws, but seemingly had no impact on the use of race as a jurisdictional consideration in the realm of Tribal Courts. Indeed, the seminal Supreme Court opinion that confirmed the restrictions on Tribal Court jurisdiction was issued in 1978, more than a decade after the Civil Rights Act liberated the rest of America's population from racial discrimination in its governmental institutions. In addition to the basic question of why race is a factor in Tribal justice, numerous other issues arise in this paradigm: Who exactly is a "non-Indian"? Is a person with a drop of Native blood in the family lineage considered an "Indian" under this system? What "race authority" should have the final word on determining such questions?

The US Supreme Court's opinion in Oliphant v. Suquamish Indian Tribe provides startling insight into the policies and mind-set that resulted in the limited jurisdiction of Tribal Courts. It is striking that nearly all of the legal authority on which the court relied was from the 19th Century, when the attitudes of the American government toward Native Americans were anything but enlightened. Citing In re Mayfield, 141 U.S. 107, 115 -116 (1891), the Oliphant Court noted that the policy of Congress had been to allow the inhabitants of Indian country "such power of self-government as was thought to be consistent with the safety of the white population with which they may have come in contact, and to encourage them as far as possible in raising themselves to our standard of civilization." The Supreme Court's decision in 1978 also cited the view Congress took toward the state of Tribal Courts in 1834: "With the exception of two or three tribes, who have within a few years past attempted to establish some few laws and regulations among themselves, the Indian tribes are without laws, and the chiefs without much authority to exercise any restraint." H. R. Rep. No. 474, 23d Cong., 1st Sess., 91 (1834). The idea that such antiquated and ill-informed perspectives could still be the basis for American legal policy in the 21st Century is difficult to fathom, and is a sad reflection of the persistent racial discrimination that lurks even in the land that produced the Bill of Rights.

What is to be done to correct this glaring discrepancy? Reading between the lines in the Oliphant decision, it seems that the Supreme Court of the time felt that the restrictions on Tribal Court jurisdiction were no longer appropriate, but that under the doctrine of separation of powers an act of Congress was required to rectify the situation. Thirty years later, Congress has obviously failed to take the hint. In all likelihood, removing race from jurisdictional considerations for Tribal Courts will require concerted pressure and lobbying of Congress by Tribes all across the country, acting in a coordinated and united front to claim this basic element of sovereignty.

Appeals in the landmark case of Cobell v. Kempthorne are likely to be argued before the D.C. Circuit Court of Appeals in the Spring of 2009. The first briefs are to be filed on Jan. 21 and the last by April 7, 2009, with oral argument to be set at the earliest practical date thereafter. At issue is a District Court order that awarded $455.6 million to thousands of Native American plaintiffs, who are pursuing claims that the government breached its trust responsibility to an estimated 500,000 Native Americans who had individual Indian Money Accounts managed by the Secretary of the Interior and the Secretary of the Treasury. In terms of the number of plaintiffs and the dollars sought, the case has been called the largest class-action lawsuit in American history. The plaintiffs have appealed on the basis that the award is far too small to adequately compensate Native Americans across the country for the loss of funds that were to be handled by the government for their benefit; the government has also appealed, asserting that the plaintiffs are owed nothing and that the federal departments are immune from suit.

President–Elect Obama has selected Senator Ken Salazar, a Democrat from Colorado, to lead the U.S. Department of Interior, which includes the Bureau of Indian Affairs. “Among the many responsibilities Ken will bear as our next Secretary of the Interior is helping ensure that we finally live up to the treaty obligations that are owed to the first Americans,” Obama said. “We need more than just a government-to-government relationship – we need a nation-to-nation relationship, and Ken and I will work together to make sure that Tribal nations have a voice in this administration.” “I look forward to helping address the challenges faced by our Native American communities all across this nation,” Salazar said.

Salazar currently holds the Senate seat formerly occupied by Ben Nighthorse Campbell, a Republican and member of the Northern Cheyenne Tribe. Despite being from opposing political parties, Nighthorse Campbell has endorsed Salazar’s selection to head the Department. “President-Elect Obama couldn’t have picked a better person,” Nighthorse Campbell said. “Kenny has a really strong voting record on Indian water rights, land claims, and things of that nature – he’s just a wonderful candidate. I think, very frankly, that Native America is going to be very happy with him.”

Salazar previously led Colorado’s Department of Natural Resources and worked as the state’s Attorney General. He also served on the U.S. Senate’s Energy and Natural Resources Committee. While in the Senate, he co-sponsored numerous legislative bills focused on Native American issues, including the National American Indian and Alaska Native Heritage Month Act, the Indian Health Care Improvement Act, the Sand Creek Massacre National Historic Site Trust Act, and a bill honoring Native Code Talkers.

A growing number of Native American housing agencies are initiating legal action against the U.S. Department of Housing and Urban Development and its Office of Native American Programs, claiming the annual block-grant funds the Tribes receive from the agency under federal law have been illegally reduced. Over 30 reservation-based housing agencies are currently suing HUD to recover funds allocated to Tribal housing programs which HUD then retracted after conducting financial audits.

The first Tribal housing agency to sue HUD over the issue was the Fort Peck Housing Authority, which filed an action in the 10th Circuit in January 2005. The new lawsuits were prompted by Congress’ reauthorization of the Native American Housing and Self-Determination Act earlier this year. The legislation, which was signed into law by President Bush on Oct. 13, placed a November 28, 2008 deadline for Tribal housing authorities to file suit against HUD for any earlier actions by the agency that are subject to dispute.

The Tribal agencies assert that HUD has unlawfully “recaptured” funds allocated to Tribes, and thereby significantly impaired the housing authorities’ ability to provide housing for Tribal members. The agencies allege that HUD recaptured funds by reducing future Native American Housing and Self-Determination Act allocations to Tribal housing agencies in light of internal audit findings the early 2000s.

Congress is expected to adjourn in December without sending a wide-ranging health care bill focused on Native Americans to President Bush, leaving Senate Indian Affairs Committee Chairman Byron Dorgan and Native American leaders to seek support from the incoming administration of President-Elect Obama. The bill was passed by the Senate earlier this year, and is likely to reappear in similar form in the next Congress.

The legislation would authorize expenditures of approximately $35 billion for Native American health care programs over the next 10 years. It would give Native peoples increased access to health care services, including screening and mental health programs. It also provides for funding increases for the federal Indian Health Service, subsidizes new construction and modernization of reservation-based health clinics, and promotes the recruitment of Native Americans into health professions. The bill also would increase Tribal access to Medicare and Medicaid.

Senate Indian Affairs Committee Chairman Byron Dorgan attributed the bill’s failure to a dispute over abortion funding. He said its passage through the House was complicated by an amendment added by Sen. David Vitter, R-La., that would bar any money authorized in the legislation from being used for abortions.

On October 10, 2008 the President signed unanimously-approved Congressional legislation authorizing a federal loan to the White Mountain Apache Tribe for the planning and engineering of a dam and reservoir, designed to provide clean drinking water to members of the Tribe. Senate Bill 3128, the White Mountain Apache Tribe Rural Water System Loan Authorization Act, was introduced by U.S. Sen. Jon Kyl (R-Ariz.) in June and passed unanimously by the Senate on Sept. 25 and the House on Sept. 29, 2008.

The White Mountain Apache Tribe is located on the Fort Apache Indian Reservation in eastern Arizona and has approximately 15,000 members. The majority of the reservation's residents currently receive drinking water from a small well field. Well water production has significantly decreased over the last few years, leading to drinking water shortages in the hot climate. In order to meet the needs of the Tribe's growing population, a new dam and reservoir known as the Miner Flat Project will be located on the reservation to provide a long-term solution to ensure an adequate drinking water supply.

The new legislation authorizes the Secretary of Interior to provide a $9.8 million federal loan to the White Mountain Apache Tribe for the Miner Flat Project, repayable over 25 years.

On September 22, 2008 Congress passed The Fostering Connections to Success and Increasing Adoptions Act (H.R. 6893). If signed into law by President Bush, this bill will create access to Title IV-E Foster Care and Adoption Assistance program while maintaining tribal autonomy.

Under the legislation, Tribes will gain direct access to federal funds for foster care, adoption assistance, kinship guardianship placements and independent living. For each fiscal year beginning in 2009, $3 million has been set aside for technical assistance and for participating Tribes to create their own child welfare programs. There are also provisions for one-time startup grants for Tribes wishing to operate their own Title IV-E program.

The new bill would require Tribes to match funds if they enter into agreements with the federal government to perform services under Title IV-E, thereby requiring analysis by Tribes of the cost/benefit and long term economic feasibility of the programs. Officials with the National Indian Child Welfare Association helped structure the Tribal components of the bill, and leaders in both the Senate and the House focused on child welfare issues for Native American children throughout the legislative process.

Foster Pepper PLLC takes great pride in its long history of service to Native American and Alaska Native peoples and organizations. From public service legal programs to multi-million dollar finance and infrastructure projects, our firm works closely with Tribes and...More...